Good Morning, Walter:
Well, bravo on last night’s post—even though you sound far more depressed than I have heard you in the five years we’ve done this dialogue. It’s important to point out that courts cannot correct every injustice, and that sometimes judges’ efforts to do so lead to more injustice, more subversive injustice, or—as we saw in the Vermont cases—rank mayhem. Even big-time courtophiles like you and me must be realistic about the limits on what legal standards courts can craft. I worry that part of the reason so much of Sandra Day O’Connor’s jurisprudence stands to be annihilated in the coming years is that her legal standards—like “undue burden” in the abortion context, or “diversity” in the affirmative action context—are just not workable. Yes, she wanted to right wrongs, but instead of creating clear, bright-line rules that lower-court judges could easily follow, she created jagged lines—or rather, O’Connor-shaped lines.
This isn’t me calling for judicial minimalism, by the way. Did you see Seth Rosenthal’s great Slatepiece yesterday about the myth of conservative noninterference? I think one of the things we need to talk about is whether this project of forever nudging the courts to the sidelines—as Justices Scalia and Thomas and (I suspect) Alito and Roberts seem to want to do—is really what the country wants. Justices Kennedy and O’Connor and even the former Chief Justice Rehnquist (but to a much lesser extent) did not evolve out of a tradition of hostility toward the courts. They weren’t really products of that post-Watergate conviction that judges are overreaching lunatics who must be stopped at all costs. You, more than anyone, have argued in prior years that the Rehnquist Court stood above all for judicial supremacy. But the balance has likely shifted with Roberts and Alito, though I think many of us failed to understand that during the confirmation hearings.
And yet, there we have Chief Justice John Roberts signing off on Justice Breyer’s paean to stare decisis in the Vermont campaign-finance cases. Breyer was basically just playing back a tape recording of the language Roberts and Alito used at their hearings, explaining why some cases are such valuable precedent that we don’t gut them without sober reflection. And Roberts signs on. But Sam Alito expressly opts out of that part of the majority opinion. Curious. I am not here to impeach Alito for his testimony, but he works awfully hard to distance himself from the discussion of precedent this week.
What do your tea leaves/tarot cards/magic eight ball tell you about whether these two men may split on the idea of a Supreme Court that still kicks some executive and legislative buttsky on occasion?
I guess this is about to be a less-than-theoretical question when the court decides Hamdan, the military tribunals case, tomorrow. Roberts won’t cast a vote, but let’s see where the rest of the court stands on the issue of court-stripping, and then we can talk about all this some more. The news from Guantanamo, by the way, is preposterous. The detainees there—so many of whom are erroneously labeled as terrorists, and desperately depressed—are not even allowed to kill themselves without having it characterized as an act of “asymmetrical warfare.”
President Bush has recently suggested that regular civilian trials would be as good as his asinine military tribunals for the prisoners at Guantanamo, and last week the Bush administration charged seven men in civilian court in Miami on conspiracy charges for attacks that include bombing the Sears Tower in Chicago. If the Bush administration loses in Hamdan will the gambit be its customary “we won anyway,” and onward ho? Or will it claim it never needed those dopey military commissions in the first place?
Or will the administration just close Gitmo, which they have wanted to do anyhow, and claim that the evil, overreaching court forced them to do it?
And just as I’m about to hit “send,” the Texas redistricting case comes down. Looks like Kennedy (in another plurality opinion) by a nose invalidating the wacky Congressional District 23. All else remains foggy, although a fast look suggests yet another insane mess of opinions in which various justices pop in and out of various portions of the opinion like a big game of constitutional whack-a-mole. But to your point from yesterday, the take-away seems to be that Kennedy is looking for a standard for a justiciable partisan gerrymander, and the world is not complying. But let’s make good on our promises now, Walter: We read Kennedy so they don’t have to.
Since presidential signing statements are so much in the news this morning, let me just close by saying that I herein disavow all portions of this e-mail that either prove incorrect or that are inconsistent with the sweeping superpowers conferred upon me as a senior editor at Slate.