Diplomatic Justice

Powerline rightfully assails this article on TNR Online for its utter disregard of the separation of powers and general analytical shoddiness. I don't think the opinion was all too horrible, though the other article Powerline cites, by Crescat Sententia's law guru Will Baude, makes a compelling argument against it. However, regardless of whether the Supreme Court got it right or wrong here, it is utterly ridiculous to even imply the Supreme Court should exercise foreign policy discretion when making decisions. That is not, under our constitutional form of government, its role. Indeed, the Court has expressly removed itself from exercising influence over FP (see United States v. Curtiss-Wright Export Co.), beyond, of course, its constitutionally delegated responsibilities (interpreting treaty law, for example). Certainly the Court's actions have incidental effect on how the world perceives us--if they interpret our constitution in a manner that makes the world happy, the world will like us, and if they interpret it in a less pleasing manner, they won't. However, once the judges go beyond merely interpreting the law and instead considering how the law should be applied in order to further a specific policy goal beyond their mandate (in this case, friendly foreign relations), that is one of the rare cases where I think the tag of "judicial activism" is deserving.

To be clear, however, I don't think that's what happened in this case. As I noted, the 8th amendment is somewhat of a special case because its language specifically connotates evolution and a look toward contemporary societal norms. Whether or not the rest of the world should count as part of that "society" is debatable, but answering yes to that question (as I do) certainly is not a ridiculous position. That's why Powerline's use of this particular case as its springboard into arguing that the Court is acting like a bunch of "robed masters" who consistently are issuing "outrageous decisions" is so manifestly absurd. This decision can be criticized, as many cases can be (and Scalia's opinion is unquestionably a resounding success on this front). However, is it really so off-kilter as to question the entire legitimacy of our judicial system? Let's get some perspective here. Maybe if the Court, say, allowed American citizens to be detained indefinitely on an isolated military base in, say, Cuba, by the whim of the President without ever being charged with a crime or being granted access to a lawyer, then they'd have a case. But thankfully, that isn't the legal environment we live in, because apparently the "Terrorists got the Last Laugh" in Al-Odah v. Bush. How nice. By the way, much credit to Mr. Mirengoff for registering is support for the right side in Hamdi and Padilla, at least. But if two of the three decisions were correct, why are the negative theme of the post? Moreover, what am I supposed to take from this excerpt in his latest attack on the Court?

"...most of the decisions [by the Supreme Court] aren't viewed as that earth-shaking from a policy standpoint, even by people who disagree with them. This is not to say that they don't have serious consequences. The defendant in the juvenile death penalty case took into account his belief that he would not be executed if he indulged his desire to murder. Now that the killer's belief has been validated and become the law of the land, a few more people probably will be murdered based on a similar calculation. But these murders will occur away from the limelight, after ordinary people have forgotten all about the Court's decision. It would take something as dramatic as a major act of terrorism by a detainee released due to a Supreme Court decision to shake the public's willingness to tolerate the Supreme Court's imperialism." [emphasis added]

Either the decisions were right, and suspected terrorists do have the right to due process of law, or they were imperialist whims of an unaccountable court. You got to pick one or the other. Hyper-ventilation aside, I have not seen much evidence to support the notion that this Court has stepped too far in its constitutional interpretation, regardless of whether we're talking about Liberal nightmares like U.S. v. Lopez and U.S. v. Morrison, or Conservative anathemas like Lawrence v. Texas or, apparently, Roper v. Simmons. Take a deep breath, and calm down.