As both sides of the court acknowledged in Thursday's decision, the cases exposed fundamental differences in the court's vision of judicial power. The conservatives favor adherence to strict rules and regulations promulgated by the political branches. The liberals are content to let judges judge, working out the boundaries between constitutional rights and national security.
The tie-breaker was Justice Anthony M. Kennedy, the nomadic conservative who in this case espoused a strong role for independent judges.
His cool assertion in the majority opinion of an essential role for the judiciary brought heated dissents from Chief Justice John G. Roberts Jr. and Justice Antonin Scalia. It lauded the role of the courts as a check on executive power and downplayed deference to the political branches.
"Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person," Kennedy wrote. He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
Roberts stopped just short of calling the opinion a power grab. "One cannot help but think . . . this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants," he wrote.
He lamented that military and intelligence officials would have a lesser role in shaping policy toward enemy combatants than lawyers and "unelected, politically unaccountable judges."
Scalia called the judiciary "the branch that knows least about . . . national security concerns" and penned the darkest line of the court's 126 pages of back-and-forth: "It will almost certainly cause more Americans to be killed."
The Chron points out in its editorial that Kennedy's majority decision quotes Federalist #84:
Kennedy quoted Alexander Hamilton's explanation in Federalist Paper No. 84 why providing a judicial forum to detainees was vital to preserving limited government: "Confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."
Capable intelligence agencies and military forces are not the only considerations in defending national security, wrote Kennedy. "Security subsists, too, in fidelity to freedom's first principles. Chief among those are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers."
Just in case you think that what we cover in class is inconsequential, here is proof that it isn't.
