Category: The Supreme Court

Hearing Hamdan.

“The president’s consistent refusal to try the Guantanamo detainees before criminal courts or courts-martial leads a reasonable observer to conclude that the government’s case would fail if it were subjected to scrutiny by an impartial adjudicator. And if that is the only justification for military tribunals, it must be rejected. No one denies that the war on terror presents new challenges to the rule of law. But prosecuting someone with a crime that does not exist, before a commission that does not have rules, simply does not constitute justice under any set of circumstances.” Slate files several dispatches on the important case of Hamdan v. Rumsfeld, which the Supreme Court (without Chief Justice Roberts, who has recused himself…as should probably Scalia) will hear today. Emily Bazelon finds that GOP Senators Kyl and Graham seem to have tried to deceive the Court about the legislative history of their Detainee Treatment Act, while Ariel Lavinbuk suggests a compromise solution: the Supreme Court could “find that ‘conspiracy’ — the only charge against Hamdan — does not violate the law of war.“

Update: The Court hears the case, and it seems a majority — Scalia and Alito notwithstanding — are not amused with the Dubya administration: “Without Chief Justice John Roberts…the argument seemed lopsided against the government.” Still, as was expected to be the norm on the Roberts Court,”the outcome of the case will likely turn on moderate Justice Anthony M. Kennedy.”

Sandra Seethes.

“It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.” Former Justice Sandra Day O’Connor goes after judge-bashers on the right, quoting very intemperate remarks by Boss DeLay and Sen. John Cornyn. Kudos to her, although, as Ed ranted earlier today, this is all coming a bit late, isn’t it? I mean, where were Justice O’Connor’s concerns about avoiding such ends when she became the swing vote on Bush v. Gore (arguably for dubious personal reasons)? Like her fellow Arizonan John McCain, Justice O’Connor talks nice about standing up to right-wing power-grabs. But, also like McCain, when it was her turn to face them down, she didn’t walk the walk.

Justices and Gerrymanders.

The Bush administration loves it, but many Justice Dept. officials think it’s illegal…Now, it’s the Supreme Court’s turn to weigh in on Boss DeLay’s gerrymandering plan in Texas. “Two years ago, justices split 5-4, in a narrow opening for challenges claiming party politics overly influenced election maps. Justice Anthony M. Kennedy was the key swing voter in that case, and on Wednesday expressed concerns about at least part of the Texas map.” (Rehnquist and O’Connor sided against the map challenge then, so a switch by Roberts or Alito will only mean a larger majority against the DeLay redistricting, should the same votes hold.) Update: Justice Ginsburg finds the subject exhausting, and Dahlia Lithwick reports in.

The Tao of Stevens.

“If anything, Stevens’s influence has grown in recent years. He has a knack for building coalitions across ideological lines, and he makes shrewd use of his prerogatives as the senior associate justice. It is largely because of him that a court with seven Republican-appointed members, and nominally headed by a conservative, Chief Justice William H. Rehnquist, produced a string of relatively liberal results in recent cases.” The Post‘s Charles Lane profiles the Court’s Supreme lefty and history’s third-oldest justice, John-Paul Stevens.

The Most Dangerous Game.

Will these terrorists stop at nothing? As you may have heard, an evildoer tried to jump our Vice-President yesterday deep in the South Texas woods. (Well, either that, or Cheney botched a hit, a la Christopher and Paulie on The Sopranos.) At any rate, both veep and alleged perp/target (Harry Whittington, a millionaire attorney) are doing fine (notwithstanding the whole being shot thing), and, for what it’s worth, Scalia got the message. Update: Dick Cheney, Hunter-Stonewaller.

Shadies gotta stick together.

Despite well-publicized concerns in their own Justice Department (which were overruled by senior officials), the White House rides to the rescue of Boss DeLay’s troubling redistricting plan by filing an amicus brief before the Supreme Court. “DeLay’s efforts on behalf of the plan resulted in his being admonished by the House Ethics Committee and indicted on charges of illegally diverting money to the campaigns of state legislators who drew the new map.“

Filibusted.

I already mentioned this in the Feingold post below, but it merits its own space: The brief Alito filibuster is already over, with nineteen Dems voting for cloture. There are a lot of blogs calling for the heads of the “Vichy Dems” right now, and, true, they’re not looking too good right now. But, frankly, neither is anyone else. The whole thing reeks of mismanagement and rank opportunism across the party.

I’m with Walter Shapiro: “In hindsight, the battle was effectively over after the first day of the Senate hearings when the criminally verbose Judiciary Committee Democrats failed to sustain a clear and consistent anti-Alito argument with all those cable networks broadcasting live. When politicians and interest-group leaders know that they are going to lose, they automatically retreat to a can-I-get-anything-out-of-the-wreckage calculus. So moderate senators from red states like South Dakota’s Tim Johnson decide that they can buttress their independent credentials with home-state conservatives by supporting Alito, since the outcome would be the same no matter how he voted. Groups like People for the American Way realize that shrill calls for a filibuster might preserve their fundraising base even if their years of urgent appeals to prevent a right-wing Supreme Court takeover failed to change a single Senate vote. And Kerry — whose late entry into the anti-Alito fray can be partly excused by his not serving on the Judiciary Committee — is also aware that such dramatic gestures help him maintain an up-to-date, ready-for-’08 e-mail list of Democratic activists.”

At any rate, the silver lining of this judicial nightmare (other than Judge Kennedy’s potential unpredictability) is that tomorrow, after Alito is voted through and Dubya gives his State of the Union, the GOP are officially out of good news. From tomorrow on, all the stories on tap, the continuing Iraq quagmire notwithstanding, are hearings and investigations — into the NSA wiretaps, into Abramoff, into Plamegate, into Katrina. So let’s pick ourselves up off the floor and get it together — We’ve got serious questions to ask of this administration, and, more importantly, we’ve got ourselves an election in nine months.

Uncle Sam, or Big Brother?

“Judge Alito’s record and his testimony have led me to conclude that his impulse to defer to the executive branch would make him a dangerous addition to the Supreme Court at a time when cases involving executive overreaching in the name of fighting terrorism are likely to be such an important part of the Court’s work.” Although the Senate Judiciary Dems (including Feingold) lined up against him, Sam Alito made it out of committee on a 10-8 party-line vote. Now, with his nomination before the full Senate, and with Nebraska Dem Ben Nelson joining the GOP majority, it seems, unfortunately, that the “worst nightmare of liberal democrats” will come to pass, and Alito will join the Roberts court. (For what it’s worth, Nelson wasn’t alone in his apostasy: Santorum challenger Bob Casey also came out for the judge.) Well, let’s hope Justice Alito takes a less forgiving look at executive encroachment than has Judge Alito. (Casey link via Medley.) Update: While the NYT says filibuster, Dems Robert Byrd and Tim Johnson back Alito. (Of course, if the NYT hadn’t sat on the NSA story for a year, perhaps we could have nipped Alito in the bud back in November 2004.)

The Kennedy Era.

“While it’s true that O’Connor has tended to vote with the majority more frequently than Kennedy, and that she has done so in some big 5-4 decisions, it’s also true that in other extremely contentious areas, it is Kennedy, not O’Connor, who has swung the court leftward.” As Dem begin to announce their no votes for Alito (while downplaying the likelihood of a filibuster), Dahlia Lithwick — who is concerned about Alito’s judgment in the relatively precedent-less world of anti-terror-law — gives us hope for the Court’s future in highlighting Anthony Kennedy as the new swing vote. (Clearly, the psycho-right despises him, which speaks well of his jurisprudence in my book.)