Saturday, June 14, 2008

To Thine Ownself be Generous, to others, Strict

At least since Brown v. Board, and certainly since Roe v. Wade, the country has seen the steady politicization of the Supreme Court. Justice is not what is, but what the balance of opinion of 9 women and men is. More precisely, for every issue being adjudicated, justice is whatever the 5th justice who signs on to a majority opinion is personally and ideologically inclined or persuaded to believe. In this, I am in some agreement with some cynical opponents of the court.

But Justice Antonin Scalia's dissent to Boumediene v. Bush yesterday was a little inconsistent with his own jurisprudential ideology, premised as it was on more than a hint of crystal ball gazing. It "will make the war harder on us," he wrote. "It will almost certainly cause more Americans to be killed." Time will tell, but one would have thought that strict constructionists were more backward-looking in their faithfulness to what the Founders said and intended, and less forward-looking in deploying predicted consequences as a major guide to judical reasoning.

Here is the so-called "Suspension Clause" (Article 1, Section 9) of the constitution - "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" - the constitutional point of contention in Boumediene v. Bush. Lawyers and judges will continue to debate the meaning of "invasion," but it is interesting that the strict constructionists on the Court have had to expand the meaning of "invasion" beyond its normal reach to justify their dissent from the majority opinion.

So, did the Court overturn the elected branches today? Yes. Does this constitute inappropriate judicial activism? Yes, if the role of the Court is to endorse the decisions of the elected branches when they are (purportedly) consonant with public opinion; no, if one's understanding of the separateness and equality of branches is consistent with the Marbury v. Madison understanding that the Supreme Court shall be the final arbiter of the meaning of our constitution. These are debatable and more or less defensible positions. What is indefensible is when strict constructionists decide, willy-nilly, to soothsay into the future or interpret the meaning of words in the constitution as and when such maneuvers help them justify their position even as they deny others this luxury.

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