The Guantanamo Cases—Suppose the Court Gives Congress Advice …


nicely games out the various approaches the court might take in the upcoming Guantanamo cases. He indicates which outcomes would be likely to require congressional responses and which would leave the status quo on firm enough legal grounds as to make it legally unnecessary for Congress to respond. But there’s another possibility that is worth considering. Even if the court reaches a holding that leaves everything that is currently in place in such a state that there is no legal


for Congress to act in response, it is entirely possible that a justice or two will write a dissenting or concurring opinion that will signal approval of various proposed legislative reforms, including the proposal for there to be a National Security Court. And if that happens, look for proponents of such measures to quickly spin such judicial dicta as being tantamount to calls by the court for a legislative response. I think that, in this context, such musing would be quite inappropriate, but even still, it might have the effect of galvanizing political support for a proposal that, as


suggests, should engender lots of skepticism. Neal Katyal has elsewhere written about the role of judges as advice-givers (see his 1998 article in the

Stanford Law Review

, which, alas, I can find no link for). And it’s definitely one way in which judges sometimes can work to shape the political process, prohibitions against advisory opinion notwithstanding. I’ll be watching to see if the court—or, more likely, any of its members—see fit to assume that problematic role here.