Opinion Round-Up
The war of words over the Hamdan ruling is particularly fierce on the op-ed pages of today’s papers. Charles Krauthammer of the Washington Post believes that the “robed eminences…didn’t have to issue a ruling this bad.” The full article can be found here.
John Yoo, in an op-ed from the L.A. Times that can be found here, also voices his strong displeasure; he writes, “The court’s decision in Hamdan v. Rumsfeld ignores the basic workings of our separation of powers.”
On the other side of the debate, Harold Meyerson of the American Prospect agrees with the Court’s holding but is skeptical of what Congress will do next; his thoughts can be found here.
Marty Lederman, writing at Balkinization, is also thinking about the repercussions of Hamdan, but he focuses here on the potential impact that the ruling might have on the NSA wiretapping program. [UPDATE: The article by Cass Sunstein that Marty is responding to can be found here.]
At the Volokh Conspiracy, Eugene Volokh has a post in the wake of the recent state court rulings on gay marriage entitled “The U.S Supreme Court and Same-Sex Marriage” that can be read here.
Finally, the editorial page of the New York Times reminds us again (here) of its belief that the Supreme Court is largely in the hands of Justice Kennedy.
I was eagerly anticipating this decision because I had listened to the arguments at Oyez.com, and when I first read that the decision had been released, I was eager to talk about the opinion. So far, however, I have been doing nothing but defending the decision to my non- or “somewhat”-legal friends.
I have received two main criticisms of this decision: (1) that the court’s opinion is nothing but a direct affront (and an unprecedented one at that) on President Bush; and (2) that the court, in this decision, gives rights to terrorists, which they don’t deserve.
The second criticism was actually published in the Pittsburgh Tribune-Review, the day the decision head-lined. It was written by anonymous members of the legal department of the paper.
I have addressed the first criticism directly. This is not an unprecedented, nor unwarranted, limit on presidential power. Two former Presidents come to mind almost immediately: Truman and Nixon. Further, the court needs to exercise its power to limit executive authority, especially when that President promulgates constitutionally suspect policies, etc. under the guise of “war-time powers.” If you can find no other reason to agree in at least a small part with this decision, that reason should be that it established good precedent and reaffirms the court’s role in our governmental structure.
My thoughts relating to the second criticism are slightly more convoluted. I first heard this criticism from a completely non-legal friend, and I thought, “what would I expect, they don’t see the larger issues?” However, it disturbed me a little more when I read the opinion in the Trib-Review. Though I haven’t yet digested the entire court opinion, I can at least understand a discussion based on the distinction between lawful-unlawful combatants (which is still a very confused distinction in my mind). However, to boil to the opinion down to merely granting rights to “terrorists” who “don’t deserve” the rights is, in my opinion, missing a large part of the picture. The opinion, in at least one sense, operates to limit Presidential powers. As far as its precedential value goes, this is an important limit on that power. Even more concretely, it at least begs the question of whether this opinion (and again, I haven’t digested it, in its entirety) might be used as a precedent to strike down unlawful and unconstitutional use of wiretapping and electronic surveillance. This, at the very least in a legal sense, is a very important and highly positive decision by the court, if you can find it in your mind to look past that fact that it gives “terrorists” rights they “don’t deserve.”
Comment by Travis Knobbe — July 12, 2006 @ 4:47 am