The Supreme Court Breakfast Table
Dear Walter, Jack, and Cliff:
Waaaack! It's June??
I mean, um, welcome to Slate's seventh annual Supreme Court Breakfast Table, celebrating the final week of the court's 2007 term. Walter—if I may brag on your behalf—your final entry in last year's exchange snagged an "Exemplary Legal Writing" award from the Green Bag this year. (No pressure.) Jack and Cliff, welcome! Jack, your book won the same award. (No pressure.)
We are so excited to have you with us for breakfast this year, Jack and Cliff. There may not be quite as many thrills and spills as we saw at the end of last term, but there are several important cases due to come down in the next few days—virtually all of which Walter appears to have argued. Perhaps the most important case of the term, Boumediene v. Bush, has already been decided, finding that the right of habeas corpus was not properly stripped from the detainees at Guantanamo Bay. I suggested last week that the language of the dissenters—who were weirdly confused about whether the courts or the detainees are more worthy of contempt—was both overheated and dangerous. This weekend Justice Antonin Scalia appeared on Charlie Rose and essentially restated his dissent: "Something like 30 of the people that the military have released from Guantanamo have returned to the battlefield and killed Americans and others. Do you expect that number to be reduced when judges are making the decision who know less than the military?" He reiterated that "the result of that answer is more people, more Americans will be killed. I think that's almost for sure."
Is he right, Jack? And if he is, should that be the end of the constitutional discussion? Does it matter at all that most of the remaining detainees at Gitmo are probably not the rabid, frothing killers he describes? Or that some may have become rabid, frothing killers as a result of their treatment at Guantanamo?
One of the things I'd like to hear from you, gentlemen, is whether you've been surprised by the almost total absence of the sharply polarized 5-4 decisions we were reading this time last year. Instead, this term (with the glaring exception of the habeas case) has seen scads of unanimous, or near-unanimous, decisions and strange-bedfellow opinions that defy the usual liberal/conservative labels and reflect a new pragmatic minimalism at the center of the court.
So, what's up with that? Are the liberals caving or poised for triumph? Is the generational split on the importance of precedent between the younger and older conservatives becoming a real rift? Has John Roberts finally steered the court to a bipartisan new Age of Constitutional Aquarius? Or were this term's cases just not the sorts of cases that keep ideologues up at night?
Let me say again just how delighted I am to be ushering in the last week of the term with you all. Welcome to Slate.
Dahlia Lithwick writes about the courts and the law for Slate.