Friday, June 30, 2006

Supreme Court, Which Part Of "Shut Up, It's None Of Your Business" Do You Not Understand?

I've just read several NRO articles about the Hamdan decision. Stevens, Kennedy, Souter, Ginsburg, and Breyer, you guys are high-larious!

This piece has some passages that sum things up nicely:

The Detainee Treatment Act of 2005, enacted last December, gives the U.S. Court of Appeals in Washington, D.C., exclusive jurisdiction to review habeas-corpus petitions from the terrorists detained at Guantanamo Bay. The act also expressly provides that, other than that court, “no court, justice, or judge shall have jurisdiction to hear or consider . . . an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba . . .” Legislative word-smithing does not get much clearer than that. Equally clear is Congress’s authority to restrict the appellate jurisdiction of the Supreme Court; Article III, Section 2, of the Constitution describes that the appellate jurisdiction of the Supreme Court is subject to “such Exceptions, and under such Regulations as the Congress shall make.”

Yet despite this clear mandate from Congress and equally clear constitutional authority for it, Justice Stevens and a majority of the Supreme Court proceeded to hear and consider, and today decided, the application for a writ of habeas corpus filed by Salim Ahmed Hamdan, currently a resident of Guantanamo Bay and formerly Osama Bin Laden’s driver (allegedly). For Justice Stevens, the law didn’t really mean what it said because Congress did not, in this section of the act, go out of its way to say that it applied to cases already pending, and interpreting the statute as plainly written would, in his view, raise serious constitutional concerns. The lawlessness of the Court’s action is manifest.

This is not the first time in our history when Congress has sought to revoke the appellate jurisdiction of the Supreme Court in a certain class of war-related cases. As Justice Scalia correctly noted in dissent, the Civil-War-era Court confronted the issue in Ex Parte McCardle, which involved an act of Congress removing the Court’s appellate jurisdiction over the habeas claim of a convicted war deserter. As here, that case was also pending at the time Congress acted. Indeed, the Supreme Court had already heard oral argument in the case and was already drafting an opinion. Yet that Court, unlike the current one, recognized the constitutional limits on its authority, noting:

Without jurisdiction the Court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.

In a case which has been reported as the Court’s rebuke to the nation’s commander-in-chief for acting “above the law,” the Court’s own lawlessness should not go unnoticed.


“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Any sound mind would recognize this infamous “mystery” passage to be gibberish. But five justices on the Supreme Court — Stevens, Kennedy, Souter, Ginsburg, and Breyer — have expounded it (the first three in 1992 in Planned Parenthood v. Casey, and all five in 2003 in Lawrence v. Texas) as their license to override, in the name of “substantive due process,” whatever democratic enactments they disfavor.

It should come as no surprise that it was these same five justices in Hamdan who disregarded the fact that Congress, in the Detainee Treatment Act, plainly deprived the Court of jurisdiction in the case and who arrogantly and illegitimately intruded on the president’s conduct of military operations. The Mystery Five have simply practiced once again the utterly lawless willfulness that they have proclaimed to be their mission. And they undoubtedly know that they will receive ample cover, in the form of fawning accolades, from legal academia and the liberal media.

Our country (loosely defined) may well survive these continuing judicial depredations. But our Constitution — and the system of representative government, separated powers, and federalism that it established — won’t.

Update: The American Thinker also has a great piece re:Hamdan.

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