A Supreme Court Conversation
Your post from last night should be required reading for all the wingers on the right who are shrilling today about "The Supreme Court and how it's destroying America." I wonder whether people truly understand how dramatically this president's reading of executive power upended the legal status quo. Still, for those who will say that any time a court acts, it is being "activist," I guess today will bring a fresh stream of vitriol from the right about "judicial overreaching, tendentious statutory construction and implausible renderings of international law."
There are also important arguments happening out there today—about the wisdom of a Supreme Court affording the broad protections of the Geneva Conventions to a non-uniformed, non-nation-state enemy—one that neither acknowledges nor respects these same boundaries on warfare. And arguments about whether we can possibly fight terrorism through trials. And our disagreement of yesterday, about whether and how the Hamdan decision will fundamentally change how this administration conducts the war on terror, is also playing out in newspapers and blogs around the country.
The AP reports this morning that there is a lot of skepticism about whether Hamdan will mean much more than no trials for 12 men. Mark Graber at Balkinization lays out the ways Hamdan may play out going forward, and he is hardly euphoric. The Los Angeles Times notes that "the White House signaled that it had no intention of backing down. Meeting the Supreme Court's objections required little more than having Congress put its stamp of approval on a system of military tribunals."
The New York Times is in your camp, however, calling Hamdan a "historic event, a defining moment in the ever-shifting balance of power," adding that "the decision was such a sweeping and categorical defeat for the administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantanamo detainees almost speechless with surprise and delight."
I think we have to wait until next year's Breakfast Table (or perhaps just the November elections) to see if the legal landscape is fundamentally altered by Hamdan.
You say this decision puts the lie to the Bush administration's chilling vision, once voiced by Richard Nixon, who said that "If the President does it, it's not illegal." I'd probably give you Yale Law School Dean Harold Koh, who likes to quote Henry Kissinger's line: "The illegal we do immediately. The unconstitutional takes a little longer."
You say government officials will watch where they step now, knowing that they are answerable to the law and not just the president. I say, have a look at Jane Mayer's latest. Because, at least according to Colin Powell, David Addington, Vice President Cheney's chief of staff and primary legal adviser, "doesn't care about the Constitution." And a lot of Bush administration lawyers—like James Comey and Jack Goldsmith—who do care about the law just don't work there anymore.
That doesn't mean the administration won't make any concessions. Bush appears to have read Justice Breyer's concurrence and concluded that working with Congress is now a super idea. Since the current GOP-dominated Congress thinks "Do you want fries with your war, Mr. President" suffices for debate on matters of war, it's up to voters to decide, come November, whether warrantless NSA surveillance and data mining, among other executive reaches, should be a part of the war on terror.
Before we sign off, do you have any quick thoughts about the new ascendancy of Anthony Kennedy? Remember that slightly strange piece in the New York Times after oral argument in Hamdan, in which Adam Cohen tried to make the best of the conventional wisdom that Kennedy was far too easily influenced by his colleagues and clerks? Wrote Cohen, "there is something refreshing about a justice who genuinely seems to have an open mind."
Talk about damning with faint praise.
That piece concluded, noting Kennedy's role as the decisive swing vote, with the tepid hope that, "rather than pleasing any ideology or interest group, the court will be guided by one man's sometimes idiosyncratic, but evidently quite sincere, attempt to reach the right result."
For those of us who truly feel like the decision in Hamdan allows us all to breathe again, is there something to be said for Kennedy's amazing performance beyond merely "whew, he got this one right?"
Walter, doing this Breakfast Table with you has been, yet again, the very best part of my job. Thanks so much for your incredible insight and deep knowledge.
Dahlia Lithwick writes about the courts and the law for Slate.