Stacking the courts

Of course wingnuts published by the respected opinion pages of wsj.com are certain that an Obama presidency would result in a Constitutional right to welfare and forced abortion of gay marriages. The fact of the matter is -- as the Times brings us a reminder today -- that in addition to the wide swath of destruction left by the Bush administration, a possible Obama administration will likely be bulloxed by federal circuit courts. Bush has appointed one-third of all federal judges, for a total of 62% of federal judges appointed by Republican presidents.

WASHINGTON — After a group of doctors challenged a South Dakota law forcing them to inform women that abortions “terminate the life of a whole, separate, unique living human being” — using exactly that language — President Bush’s appointees to the federal appeals courts took control.

A federal trial judge, stating that whether a fetus is human life is a matter of debate, had blocked the state from enforcing the 2005 law as a likely violation of doctors’ First Amendment rights. And an appeals court panel had upheld the injunction.

But this past June, the full United States Court of Appeals for the Eighth Circuit voted 7 to 4 to overrule those decisions and allow the statute to take immediate effect. The majority argued that it is objectively true that human life begins at conception, and that the state can force doctors to say so.

Mr. Bush had appointed six of the seven judges in the conservative majority. His administration has transformed the nation’s federal appeals courts, advancing a conservative legal revolution that began nearly three decades ago under President Ronald Reagan.

On Oct. 6, Mr. Bush pointed with pride to his record at a conference sponsored by the Cincinnati chapter of the Federalist Society, the elite network for the conservative legal movement. He noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and that represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts — Bill Clinton appointed 65 judges, Mr. Bush 61 — Mr. Bush’s judges were among the youngest ever nominated and are poised to have an unusually strong impact.

We can only hope that their incoherent views of the Constitution will lead to plenty of dissension within their ranks.

Scalia throws the courts under the bus

Dahlia Lithwick is really smart.

And in the end, this is the fight between the majority and the dissent: Kennedy and the justices who signed his opinion (David Souter, John Paul Stevens, Stephen Breyer, and Ruth Bader Ginsburg) are worried about the very real risk of a lifetime of mistaken imprisonment. And the dissenters (Scalia, Roberts, Clarence Thomas, and Samuel Alito) are worried about the risk of ... what? Not an actual mistaken release, but a day in court. The big threat here is of federal court review that may—somewhere far down the line, and at the moment entirely hypothetically—result in the release of a detainee or (more attenuated still) the disclosure of a piece of hypothetical information that could help the terrorists in their fight against us.

Six years of no trials, in the eyes of the dissenters, is more than justifiable in the hopes of dozens more years of no trials. And it's precisely that sense of time passing without consequence that so infuriates the majority. Justices Kennedy, Breyer, and Souter each observe in their opinions today that the passage of so many years while detainees waited and watched was preposterous. This is not some demented Supreme Court prematurely racing into a war zone with morning breath, uncombed hair, and misguided good intentions. This is a deliberative Supreme Court saying that it's been standing by for six long years. That's how long it's been since the Bush administration started doing battle with the federal courts alongside its battle against the enemy. Responding to the dissenters' fatuous complaint that the majority should have waited to see how the tribunals played out before ruling on their constitutional infirmity, Kennedy observes that, as yet, the game still hasn't even started, and "the costs of delay can no longer be borne by those who are held in custody." As David Barron points out at "Convictions," the court is saying that if Congress wanted to suspend the right to habeas, it should have done so, clearly and definitively. The court is also saying that six years of detainee victories that—for all the change on the ground at Guantanamo—might as well have been losses are not exactly a ringing endorsement of the American legal system.

Habeas

The New York Times editors write,

A Key Moment for Justice

The Supreme Court hears arguments today in a case that offers a chance to redress an enormous wrong done by President Bush and Congress when they denied justice to a group of prisoners. It is the latest phase of a battle over whether detainees held in Guantánamo Bay, Cuba, have the right to bring a habeas corpus challenge to their confinement. The narrow legal issues have changed since the court considered the question last year, but the principle remains the same: The detainees have a right to have a court determine whether the government has a valid basis for imprisoning them.

Habeas corpus is an important bulwark against authoritarianism, so vital that the Constitution expressly protects it. Since the Sept. 11 attacks, however, the Bush administration has fought to weaken it both for foreigners held by the United States and for American citizens.

The fight over Guantánamo has been especially heated. The administration has made a variety of arguments for why the detainees have no habeas rights. Notably, it claimed that the naval base at Guantánamo Bay, Cuba, is outside the reach of American law. So far, the Supreme Court has rejected the administration’s arguments. It specifically ruled that the naval base is functionally part of the United States.

The issue today is whether, after the Supreme Court’s rulings, Congress succeeded in stripping the detainees of their habeas rights when it passed the Military Commissions Act. The act authorized military commissions to hear the detainees’ cases and set up a hollowed-out appeals process in the federal courts. At the same time, the act intended to strip the courts of jurisdiction to hear habeas petitions filed by the detainees.

The Supreme Court should rule that the detainees still have the right to habeas review. The Constitution’s framers put strict limits on Congress’s power to tamper with habeas corpus. The suspension clause says it cannot be suspended “unless, when in cases of rebellion or invasion, the public safety may require it.” Since there was neither, Congress had no right to suspend habeas rights, much less take them away permanently.

In rare circumstances, the court has said alternative procedures can substitute for habeas. But it has required them to be almost identical to the protections of habeas. That is far from the case with the shabby regime set up by the Military Commissions Act, which among other things permits the use of secret evidence. Detainees are barred from submitting some of the evidence they need for their defense. At certain points, they are not allowed to be represented by counsel. Most critically, even if a detainee wins, the court is not authorized to free him.

Habeas imposes serious obligations to treat prisoners fairly. The founders anticipated that Congress would be tempted to limit it, which is why they wrote the suspension clause. The Supreme Court should uphold this critical check on power by ruling that Congress may not deprive detainees of their day in court.

Giving up our rights

Chris Dodd for president.

The General concurs.