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Sunday, July 02, 2006

The Supreme Court Needs to be Reigned In

The Supreme Court is completely out of control and needs to be reigned in. Thursday's ruling against the President's power to authorize military tribunals for Guantanamo Bay detainees is a clear interference by the Judicial Branch into powers constitutionally granted to the Executive. The liberals on the court who voted in the majority even had the chupzta to admonish the president for overstepping his authority.

The decision was clearly a circumvention of the Constitutional authority that establishes the President as Commander-in-Chief and grants Congress the power to check the power of the Court by limiting it's jurisdiction. Congress had passed a post 9/11 law that removed the Court's jurisdiction from this question, but the Court simply said that the law did not apply and proceeded to render an outrageous decision.

The vote 5-3 vote was along ideological lines. Liberals Ginzberg, Stevens, Breyer, and Souter, along with "moderate" (liberal-speak for a wishy-washy liberal) Kennedy voted in the majority while conservative (or, perhaps more correctly, "original intent") justices Scalia, Thomas, and Alito opposed the decision. Chief Justice Roberts did not participate in the vote as he was one of the judges on the lower court decision on the case (and he got it right there).

Justice Thomas, in the dissenting opinion, points out the lack of common sense, let alone the lack of judicial authority, in the majority decision:
Those Justices who today disregard the commander-in-chief's wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency's wildly implausible conclusions that a storm drain is a tributary of the water of the United States. It goes without saying that there is much more at stake here than storm drains.
In addition to being devoid of constitutional merit on its face, the Court's ruling is downright dangerous in this time of war. It sets the dangerous precedent that the President, and to some degree Congress, is obligated to play a "Captain may I" game with the Court when it comes to prosecution of the war. It's curious that during the Roberts and Alito confirmation hearings the libs were all worked up about their belief that the nominees would not practice stare decisis once they were on the Court. In this case it sure looks like the liberals on the Court ignored the 1942 precedent that allowed liberal Democrat President Franklin Roosevelt to conduct the same kind of tribunals that President Bush authorized.

In order to support the majority decision with intellectual honesty one has to accept the following:
  • The Court can ignore a Constitutionally granted power of Congress to restrict its jurisdiction
  • Non-US citizens have US Constitutional rights
  • It is proper for the Court to consider international law in its decisions
  • Unlawful Combatants are covered by the Geneva convention
It appears that the Court's decision is attempting to steer the prosecution of the War on Terror (an area in which it has no constitutional authority) back to the failed Clinton Administration policy of dealing with terrorism as a law enforcement problem. This is definitely not the way to go as the civilian judicial process opens up innumerable logistical and security problems. In addition, the legal discovery process effectively forces the revelation of intelligence secrets to the enemy.

There is probably a legislative way around this misguided decision, but the work-around is not without problems. In the majority opinion Justice Kennedy left the door open for the President to get what he wants by getting congress to pass a law authorizing it. Given the reckless "anything to get Bush, regardless of the consequences" attitude of many Democrats, along with the inability of the Republican majority to reign in "moderate" RINOs, it is a real crap-shoot to predict what kind of politicized legislation will result and how much time it will take.

Rush Limbaugh, who on his radio show aptly characterized the Courts decision as an "al-Qaida Bill of Rights" and a de facto treaty with al-Qaida that was not ratified by the Senate, sees it like this:
Why do you think one man was named commander-in-chief by the Founding Fathers in our Constitution, that man being the president? Because of exactly what is going to happen now. You're going to have 435 congressmen and a hundred senators getting in on this and trying to come up with a law that allows the commander-in-chief to do what he needs to do in order to prosecute a war... It's just absurd.
This horrible ruling by the court (as well as several other recent rulings, e.g. Kelo, allowing racial quotas to influence college admissions, etc.) is a clear example of why it matters who we elect as President and why we need to lobby for the appointment of strict constructionist judges in the mold of Scalia and Thomas.

Hopefully the rumors of a Supreme Court vacancy this summer comes to pass and President Bush proceeds to seat a judge that will interpret the constitution rather than arbitrarily promote his or her own political and social agendas. Such a reform of the Court is long overdue to reverse the course toward judicial tyranny that the Court has been on for the last 50 years or so.


Blogger G-man said...

There is an easy way to define judges. Conservative judges conserve the law. Liberal judges take liberties with the law.

7/03/2006 2:53 PM  

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