Not All Judicial Answers Are To Constitutional Questions

Pejmanesque has an excellent round-up of the Supreme Court's recent enemy combatant cases.

He has one point which I want to highlight because it addresses a concern that I often have about the court:

Justice O'Connor then goes on to find that Hamdi has the right to contest his status as an enemy combatant before a neutral decisionmaker. In making that finding, Justice O'Connor at the same time argues that "enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." To wit:

Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant.

In policy terms, I may not have a problem with this, but O'Connor gives us no indication whatsoever that any of these prescriptions are rooted in precedent, or that there is any Constitutional or statutory basis for them. In other words, she made the prescriptions up, and tailored them to this case. That's fine for a member of Congress to do, but it is precisely this kind of policymaking by the courts that drives people like me up the wall.

This is exactly my problem with many important Supreme Court decisions in the past 30 years or so. It isn't that I do or do not like the outcomes (sometimes I do, sometimes I don't). What bothers me is that the Court more and more finds it appropriate to engage in making decisions about fine policy questions that are far removed from the Constitution. It isn't that I have trouble with the Court's role in enforcing the Constitution. I have trouble with the idea that the Court ought to be the last word on all important issues--even when the Constitution can only be implicated by stretching the meanings of the words far out of whack.

This case is a classic example. It may be that proper Constitutional analysis may require the Court to find that "a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." I even like that decision. I also like the policy of requiring something different for citizen participants in a war against their country than is required by normal criminal law. But that last part isn't Constitutional law. It is prudent policy-level decision-making. And it ought to be done by the legislative branch.

BTW, there is a constitutional question that I haven't seen addressed: how does this interact with the very strict Constitutional requirements for proving treason? Do you avoid it by detaining someone indefinitely and not calling it treason? (Practically the answer is of course yes. But that doesn't make it pretty.)

Comments

[carpeicthus]

Largely agreed, but a particular puzzlement at the "last 30 years" part. You're a smart guy, surely you have a better grasp of history than that.

[Dave Schuler]

As has been pointed out by many far more qualified than I to make such pronouncements, the Court has been inclined to err in controversial cases of this sort in the direction of increased judicial power and discretion viz. SCOTUS blog:

But one message seemed unmistakable: the Court will remain open, and it will be watching.

and

I find myself both comforted and concerned in this findings: comforted in that the Court has placed limitations on executive power to infringe on the rights of citizens even in wartime and concerned that the protection against possible executive infringement resides in the courts, the least democratic of the three branches of government.

[Dave Schuler]

The quote mysteriously omitted from the comment above was:

While this has the effect of creating new checks and balances, it also tends to enhance the role of the judiciary as it interprets those norms.

[Gary Farber]

"What bothers me is that the Court more and more finds it appropriate to engage in making decisions about fine policy questions that are far removed from the Constitution."

On this particular one, I agree with you, Sebastian. O'Connor tends to be an egregious offender in this regard, as noted by Scalia's eloquent dissent.

[Gary Farber]

"I find myself both comforted and concerned in this findings: comforted in that the Court has placed limitations on executive power to infringe on the rights of citizens even in wartime and concerned that the protection against possible executive infringement resides in the courts, the least democratic of the three branches of government."

That latter could also be in the hands of Congress, were it not for the fact that: a) it's wholly in the hands of the same Party, and the leadership tends to be even more extreme than the Executive, and b) see "a."

But I'll also point out, as I have here before, that it's the job of the SCOTUS and the courts, as the "least democratic branch" to insulate, to some degree, law and the Constitution from the passions of the day; thank the Founders we are not a pure democracy.

[Dave Schuler]

Gary Farber:

But I'll also point out, as I have here before, that it's the job of the SCOTUS and the courts, as the "least democratic branch" to insulate, to some degree, law and the Constitution from the passions of the day; thank the Founders we are not a pure democracy.

There is an unstated assumption here: that the SCOTUS is, in fact, a moderating influence. When the courts become more extreme than either the Congress or the people or become a stalking horse for the Congress, problems arise.

IMO, there's a similar problem WRT the Congress. If the Congress vote slavishly in accordance with public opinion polls, why is that preferable to direct democracy?

[Sebastian Holsclaw]

"But I'll also point out, as I have here before, that it's the job of the SCOTUS and the courts, as the "least democratic branch" to insulate, to some degree, law and the Constitution from the passions of the day"

I'll agree but with reservations. The Supreme Court is supposed to preserve the Constitution from the passions of the day. I say preserve to suggest that it is supposed to keep stable the most core articulated principles of the Constitution until they are changed by the legally permitted proccesses. They are not empowered to change the meaning of the Constitution, they are supposed to defend it against the changes of the Administrative and Legislative branches unless those branches go through the proper channels. That is why I always say that not all important issues are Constitutional issues. (Though if you think it important enough you could always amend the Constitution.)

I have to agree with Dave that it is not at all obvious that the modern Supreme Court is a moderating influence at this point.

[Katherine]

There is a precedent, actually. It's called Matthews v. Eldridge, and it uses this sort of ad hoc, policy based, balancing test to decide due process cases. You are supposed to weigh:
1) the government's interest
2) the individaual interest
3) the likelihood that more process will lead to a better result.

Now, you can argue that:
1) Matthews was wrong when it was decided (mid 1970s), and/or
2) That it shouldn't be applied in this situation, when the stakes are so much higher on both sides of the equation (Matthews was a disability benefits case) and when there are other, clearer Constitutional provisions on point (the habeas clause, the treason clause) as well as some statutes (the Non-Detention Act.

I definitely agree with #2. I'm stumped as to #1. It sounds eminently sensible, and I think justices should consider whether more process will actually result in a more just outcome--this was Matthews' main innovation. On the other, it is a broad license for outcome-driven decisions. Courts routinely reach results I find inexplicable under the Matthews test.

But the Constitutional provision is "nor deprive any person of life, liberty or property without due process of law". It is vague. It is deliberately vague. I don't know how you give it force or meaning without making some fairly concrete policy decisions, and I don't know what the test should be if we abandon Matthews.

[Gary Farber]

When the courts become more extreme than either the Congress or the people or become a stalking horse for the Congress, problems arise.

I agree, Dave, though I think such cases still tend to be exceptional.

IMO, there's a similar problem WRT the Congress. If the Congress vote slavishly in accordance with public opinion polls, why is that preferable to direct democracy?

It is not, though, again, that's what the courts are there to deal with, although, naturally, it would be vastly better if they did not have to, and Congress and the President was simply wise enough in the first place. But the Founders, as clearly explicated in the Federalist Papers, knew that was never going to happen.

I agree with everything you said there, Sebastian.

Katerhine, I quoted some of Scalia's brilliant dissent here, and since you also praised it, I presume you are aware that, well, I'll just quote Scalia where I did not before:

It claims authority to engage in this sort of "judicious balancing" from Mathews v. Eldridge, 424 U. S. 319 (1976), a case involving ... the withdrawal of disability benefits! Whatever the merits of this technique when newly recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer.

Call me crazy, but I can't see my way to overthrowing one of our most basic Constitutional freedoms, habius corpus because of Mathews v. Eldridge's not terribly momentous decision on disability benefits.

I'd agree with your #1 and #2, in other words. But while we can argue about the fine details of "due process," I don't think there should be argument about rendering habius corpus irrelevant without troubling to suspend it. Unfortunately, the argument took place, and my opinion lost.

[Gary Farber]

Habeas. Sheesh. Habeas.

[Katherine]

Well, it's not some niggling disability benefits case; it is the working test for due process and arguably the most important due process case in the last thirty-odd years. We covered it on my second day of law school and I know not how many times since. But it is less universally accepted for liberty cases than property cases.

Tentatively: I don't actually agree with Scalia's dissent. I agree with Souter's and Ginsburg's dissent.

[sidereal]

Interesting article in First Things regarding the current Court's interest in conciliation as a goal in and of itself.

[Dave Schuler]

Gary Farber:

I agree, Dave, though I think such cases still tend to be exceptional.

Please don't take this as trying to be flip but few non-exceptional cases make it to the Supreme Court. As I see it there's a rising number of cases in which the Court is considerably more extreme than the country.

[Ken C.]

I agree that the court has overstepped at times. Most egegrious, historically, would be Bush v. Gore.

[Ken C.]

Yikes. s/egegrious/egregious/ .

[Edward]

I think the current SCOTUS is a disgrace, actually.

Between shirking their responsibility (think the Pledge case or Cheney energy case) and even taking Bush v. Gore, I think the whole lot of them should be replaced. In fact, as soon as Kerry's sworn in, I'll insist on it. ; )