EATING CROW, AND SOME OTHER THOUGHTS ON JUDICIAL DEFERENCE DURING WARTIME
Time to eat crow. Last year I wrote these words:
Plaintiffs in terrorism-related cases (where the Executive branch invokes national security concerns) are having a hell of a time trying to get their cases up to, let alone past, the circuit courts. The Supreme Court is not going to hear a challenge to the 4th Circuit's rulings in the Hamdi litigation, for example. The reasons why are partly political, to be sure. Even if the judicial "liberals" on the Court wanted to take these cases -- and they might not -- they'd probably have to reckon with the unlikelihood of the success of their preferred positions. In addition, and more fundamentally, courts generally defer to the executive during wartime.
I was wrong in my prediction that the Court would not grant cert in Hamdi. This issue is significantly more complicated than I said (and thought) at the time. This Court has not been shy about tackling tough policy questions, and its boldness doesn't disappear in the terrorism context. I'll have to think about that some more, especially after the opinions in the detention cases themselves are handed down.
Perhaps the Court will defer to the executive this time around, but I'm less certain about that prediction now than I was last year. The difficulty that arises with judicial deference in the present context is twofold:
- the administration has advanced very expansive conceptions of its own power, conceptions that threaten to exclude judicial oversight in terrorism cases entirely. Not sure that the courts will (or should) buy that argument as such, and my guess is that the final opinion will be nuanced and open-ended in the face of those particular arguments.
- the administration has had some severe public relations difficulties recently, some of which involve questions that were asked at oral argument before the Supreme Court itself, as Eric Muller, Phil Carter, and Mark Kleiman have noted. A Supreme Court ruling that simply endorses the administration's claims that it can be trusted not to engage in torture in Guantanamo would probably weaken the Court's prestige at this point. Should the members of the Court care about that possibility? Probably. How should that affect their ruling? Not sure.
2 Comments:
You raise an interesting point regarding the Court's prestige, one I hadn't considered. This Court doesn't take a back seat to anyone, as it has repeatedly reminded us. On the other hand, the Court has taken some hits lately; I'm referring here to comments made by folks like Sensenbrenner, suggesting that the Court would do well to know its place. An equally interesting question, and one I wish the Court would explore by way of reargument (though it won't) is what DOJ knew and when it knew it regarding prisoner abuses. All in all, these decisions are shaping up to be incredibly interesting and telling.
By the way, inquiring Marstonalia readers want to know...where might the Professor's professional pursuits take him?
Dan
This post has a prediction rooted in judicial supremacy views of this court. I was resisting that kind of conclusion, but I suppose we'll see how it turns out.
As for where I'll be: any suggestions? I'm having fun reinventing myself right now. . .
Seriously, no solid leads yet, but I remain optimistic.
Post a Comment
<< Home