What's Left of Judicial Deference?

Slate's blog on legal issues.
June 12 2008 2:49 PM

What's Left of Judicial Deference?

Though the opinion in

Advertisement

should give us all some pause, I'm still thinking that today's

Boumediene

opinion comes as close as I've seen the court come to sounding the death knell for broad judicial deference to the executive on matters of national security.

The majority opinion doesn't just embrace a functional approach to resolving questions of the scope of the Constitution's applicability abroad. (When constitutional lawyers talk about functional approaches, they generally mean something that takes into account the practical effects of a particular outcome in resolving questions of constitutional power). In announcing the practical considerations that matter, Justice Kennedy's opinion gives executive claims of security necessity (that is, the executive's view of what's practical) at Guantanamo the back of his judicial hand.

What does matter in determining whether the Constitution (here, the Suspension Clause) constrains U.S. actions outside the territorial United States? Kennedy says three things: 1) citizenship and status of detainee; 2) the nature of the site of the detainee's apprehension and detention; and (3) practical obstacles inherent in resolving entitlement to writ. What about the practical obstacle the administration's been touting all along—that full habeas hearings with consideration of all evidence and so forth would compromise U.S. national security? According to Kennedy: "The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims." Ouch.

Marty's right that today's decision leaves open the critical next question of what about the habeas petitioners today held at the United States base in Bagram, Afghanistan. But that's a pretty strong shot across the bow of the executive branch all the same.

TODAY IN SLATE

Foreigners

More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

What Charles Barkley Gets Wrong About Corporal Punishment and Black Culture

Why Greenland’s “Dark Snow” Should Worry You

Three Talented Actresses in Three Terrible New Shows

Why Do Some People See the Virgin Mary in Grilled Cheese?

The science that explains the human need to find meaning in coincidences.

Jurisprudence

Happy Constitution Day!

Too bad it’s almost certainly unconstitutional.

Is It Worth Paying Full Price for the iPhone 6 to Keep Your Unlimited Data Plan? We Crunch the Numbers.

What to Do if You Literally Get a Bug in Your Ear

  News & Politics
Weigel
Sept. 16 2014 7:03 PM Kansas Secretary of State Loses Battle to Protect Senator From Tough Race
  Business
Moneybox
Sept. 16 2014 2:35 PM Germany’s Nationwide Ban on Uber Lasted All of Two Weeks
  Life
The Vault
Sept. 16 2014 12:15 PM “Human Life Is Frightfully Cheap”: A 1900 Petition to Make Lynching a Federal Offense
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Slate Plus Video
Sept. 16 2014 2:06 PM A Farewell From Emily Bazelon The former senior editor talks about her very first Slate pitch and says goodbye to the magazine.
  Arts
Brow Beat
Sept. 16 2014 8:43 PM This 17-Minute Tribute to David Fincher Is the Perfect Preparation for Gone Girl
  Technology
Future Tense
Sept. 16 2014 6:40 PM This iPhone 6 Feature Will Change Weather Forecasting
  Health & Science
Science
Sept. 16 2014 1:39 PM The Case of the Missing Cerebellum How did a Chinese woman live 24 years missing part of her brain?
  Sports
Sports Nut
Sept. 15 2014 8:41 PM You’re Cut, Adrian Peterson Why fantasy football owners should release the Minnesota Vikings star.