"Strict Contortionists" [or] "One Man's Ceiling is Another Man's Floor"

    OK ladies and gentlemen, on the count of three, let's all heave a great big collective sigh of relief:

   One, two, three . . . "Aaaaah"! 

    I'm sure that's how a lot of us feel now that the Supreme Court has finally handed down its decision in Boumediene  et al v. Bush, the case that -- at least for now -- keeps habeas corpus alive and kicking.  In rendering its razor-thin 5-4 decision, the court has stingingly rebuked President Bush and all his Hey! Don't you know that America's at war with radical Islamists? allies.  In its landmark decision, Justices Kennedy, Stevens, Souter, Breyer and Ginsburg have held that habeas corpus protections do apply to detainees held at Guantanamo Bay. And despite what Chief Justice Roberts and his, brethren Scalia, Alito and Thomas claim, Boumediene v. Bush will neither place America in greater peril nor free prisoners from their padlocked cells.  What it does do is underscore the continued centrality of the United States Constitution -- even in a time of war.

   Writing for the majority, Justice Kennedy noted that "Liberty and security can be reconciled; and in our system they are reconciled within the framework of law."   

   Justice Scalia's scathing 25-page dissent reads more like a political broadside than a reasoned legal brief:

• "The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us.  It will almost certainly cause more Americans to be killed."
• "Today the Court warps the Constitution."
• "The nation will live to regret what the Court has done today." 
• "[This decision] breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization."
• "Most tragically, it sets our military commanders the impossible task of proving to a civilian court . . .that evidence supports the confinement of each and every enemy prisoner."

   If I understand the dissenting opinion correctly, a large part  of the argument rests on the "fact" that since Guantanamo is not on American soil, the Constitution does not apply to those "enemy combatants" housed there.  Well now, if our base in Guantanamo is not, for legal purposes, considered part of the United States, then it logically follows that Senator John McCain is debarred from running for President of the United States; he was, afterall, born on a military base in the Panama Canal Zone, and according to Justice Scalia, that base was not a part of the United States. 

   As they say in legalese, Res ipsa loquitur -- "The thing speaks for itself." [Yes yes, I know, literally it should be rendered "The thing itself speaks," but let's not split fine hairs.]  

   Those decrying the majority decision claim that now, dozens -- if not hundreds -- of suspected terrorists will be free to go back home and start blowing us up all over again.  Granting the right of habeas corpus to this group -- so Scalia and his supporters argue -- will place America in grave peril.  Well, even retired General Colin Powell disagrees.  Speaking on the very issue last year, Powell said:

   "The concern was, well, then they'll have access to lawyers, then they'll have access to writs of habeas corpus.  So what?  Let them.  Isn't that what our system's all about? And by the way, America, unfortunately, has too many people in jail, all of whom had lawyers and access to writs of habeas corpus.  And so we can handle bad people in our system."   

   Be prepared for a watered-down version of this decision to become part of Senator McCain's presidential campaign.  We've all heard the argument before: "If you don't elect me, sure as God made little green apples, the Democrats are going to appoint activist judges to the Supreme Court . . . and then where will we be?"  Further, he and his surrogates will argue that "A vote for John McCain is a vote for 'strict constructionsts,' judges who, far from enacting new law, will rely only on what is actually written in the Constitution!"

   This argument -- about "activist" versus "strict constructionist" judges --  has been part of the Republican playbook ever since the days of Richard Nixon.  In recent years, it has become code for "If you elect a Republican, he will only appoint judges who will overturn Roe v. Wade and make sure that you can have prayer in the public schools."  Well my goodness, we've had lots of these so-called "strict constructionists" on the bench for the past two decades, and Roe v. Wade is still the law of the land.  Ironically, overturning this decision would be a Republican's worst nightmare; what would they then have to rail against?  How ever could they keep their conservative and evangelical friends voting for them?

   From where I sit, Roberts, Scalia, Alito and Thomas are not "strict constructionists" in any sense of the term.  At best, they are judicial activists; at worst, what might be termed "judicial contortionists."  It never ceases to amaze me how, that when Republicans agree with a judge, he or she is a "strict constructionist;" but when they disagree, its because the juror is a so-called "activist."

   Paul Simon said it best: "One man's ceiling is another man's floor."

   To my way of thinking, left to their own devices, Roberts, Scalia, Alito and Thomas are -- in potentia -- the very definition of "activists" judges.  They are the ones seeking to make new law, rather than rendering law based upon a literal reading of the Constitution.  

   One of the issues best kept in mind when deciding whether to vote for Senator McCain or Senator Obama is this matter of "activist" versus "strict-contortionist" judges.  The court is now just one "strict contortionist" Justice away from being as fully conservative as it was in the days of William Howard Taft.  Justice John Paul Stevens [the man who replaced Justice William O. Douglas] turned 88 a month ago; you can bet he's going to be retiring in the very near future.  And although Justice Anthony Kennedy is a very spry 72, he is far from predictable.  Knowing that he is the current "swing vote" on the Supreme Court isn't too great for one's sense of well-being.  His legal instincts are far closer to Roberts and Scalia than to Souter or Ginsburg.

   I can think of lots of good reasons to enthusiastically prefer Senator Obama to Senator McCain.  But after witnessing just how close we all came to losing habeas corpus this week, the issue of appointing Justices to the Supreme Court has broken away from the pack and is now heading into the lead.

   ©2008 Kurt F. Stone