The Breakfast Table

Justices Breyer and O’Connor Get Cozy

Dear Walter:

Yes. Yes, I do think the decisions in Hamdi, Padilla, and the Guantanamo cases were informed by the events at Abu Ghraib, the torture memo, and by the court’s growing awareness that the executive branch was arrogating to itself the power to make ultimate decisions about legal questions in the war on terror. Hamdi was, for all intents and purposes, an 8-1 decision against the Bush administration. I don’t know that eight justices felt that way at oral argument. Something changed.

Sometimes we forget that while we don’t read much about the justices in the newspapers, they read a whole lot about us. The cynical view of the detainee cases is that the court was simply grabbing back its veto power from the executive branch. My own view is that they saw a terrific imbalance in war powers and sought to correct it, somewhat artlessly, but for the right reasons.

The Guantanamo and Hamdi decisions actually raise more practical questions than they answer. Justice O’Connor’s abstract framework about the need for neutral fact-finders and the right to question government assertions will need to be concretized into actual systems for challenging detentions. Yikes. And whatever systems emerge, for Hamdi and Padilla and for the men at Gitmo, the executive will doubtless keep a heavy thumb on the scale in favor of more detention. If a series of kangaroo courts becomes the answer, yesterday’s decisions will prove a somewhat Pyrrhic victory. But the more urgent point is that the court will remain in the background, policing things.

I slept rather well last night, Walter, for that knowledge.

The decision today in the Internet porn case feels somewhat anticlimactic after all the big questions yesterday. Here Justice Anthony Kennedy is upholding the 3rd Circuit’s injunction of the Child Online Protection Act because the statute still likely sweeps in too much constitutionally protected speech in its ban on smut. In another one of those hilarious forays into deconstructing the implications of modern technology, Kennedy suggests that filtering technology has come a long way, baby, and that it would be a good idea if everyone could update the record to reflect the ways in which new technology might obviate the need for this legislation. Of course, everybody seems to acknowledge that this is a case in which technology will always lap the justice system as the case boings back and forth between the courts. The question is whether we keep insisting the law catch up or concede that it’s done its level best. The Supreme Court has now heard this case three times. Justice Stephen Breyer’s dissent points out that he isn’t even certain what’s left to be litigated down in the lower courts. By the time they finally decide all this stuff on the merits, we’ll be e-mailing each other from wee Blackberries that have been surgically implanted in our eyebrows. And what we now consider porn, will be playing on Saturday morning children’s television.

The best part of the porn case is Justice Breyer’s dissent, joined by the chief justice and Sandra Day O’Connor. In yet another piece of evidence that the man marches to the tune of his own ukulele, Breyer argues that the statute is tailored sufficiently narrowly to regulate only unprotected speech, and that it doesn’t burden purveyors of smut all that much. The badness of porn exceeds the burden on speech, and Congress did a better-than-fair job of narrowly banning it. That’s good enough for him.

I know you have thoughts on Alvarez-Machain, the other case decided today. And I’d love to hear any quick thoughts you might have on the pair of Miranda cases from yesterday. Mostly, I’m interested in any insight you may have on the growing bond between Justices Breyer and O’Connor. More and more, they form an interesting sub-bloc of what you’d call “pragmatists.” I call them the court’s “reasonable men.” They both embrace a sort of, “Let’s roll up our sleeves and get this little problem solved” approach to the law, an approach that cuts across all sorts of ideological and doctrinal lines. I confess that while I find some of their fast-and-looseness troubling, it’s refreshing to see that the court’s balance has tipped somewhat from the constitutional sherry-sippers to the jurisprudential beer-swillers.

Thoughts on this or other matters?