Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court.Is this really a myth? Hasn't it been clear for many years that the conservatives needed a swing vote (or two, before Alito)?
Academics used to complain about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school.Oh, yeah, academics. When didn't they complain that the Court is too conservative?
Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer -- saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.Saves his claims of judicial supremacy? If you're going to use that inflammatory term, why don't you think it applies just as well to striking down the Gun Free School Zones Act and those attempts to abrogate sovereign immunity? (Justice Kennedy was in the majority in those cases.)
Courts interpret statutes and constitutional provisions and, in case of conflict, declare the Constitution the winner. To do that is to do what is required. It's not a power grab. The real problem — and of course Professor Yoo knows this — is interpreting the Constitution too broadly so that it beats out a statute when it shouldn't. That only deserves to be called "judicial supremacy" if the judge willfully expands the meaning of the Constitution to strike down a statute he doesn't like.
So, really, to put it undramatically, it all boils down to whether the majority or the dissenters had the better interpretation of the Constitution. Yoo, not surprisingly, agrees with the dissenters. Since he also, I assume, approved of the statute, his agreement with the dissenters doesn't test whether he's above the "brazen power grab" he sees from the majority. He wants this statute to survive.
The Boumediene majority ... assumes that we have accepted judicial control over virtually every important policy in our society, from abortion and affirmative action to religion. Boumediene simply adds war to the list. The justices act like we are no longer really at war. Our homeland has not suffered another 9/11 attack for seven years, and our military and intelligence agencies have killed or captured much of al Qaeda's original leadership. What's left is on the run, due to the very terrorism policies under judicial attack.Now, wait a minute. Yoo is not saying merely that the proper constitutional interpretation yields strong executive powers in the area of war. He's saying that war is different, and courts should not dare to follow their ordinary — business-as-usual — approach to constitutional interpretation. That, in fact, is an argument for judicial willfulness, because it demands that the judges look at real-world conditions, have views about what is good and bad, and adjust the meaning of the Constitution accordingly.
Justice Kennedy and his majority assume that terrorism is some long-term social problem, like crime, so the standard methods of law enforcement can be used to deal with al Qaeda. Boumediene reflects a judicial desire to return to the comfortable, business-as-usual attitude that characterized U.S. antiterrorism policy up to Sept. 10, 2001.
Do not misread me. I'm not saying whether I think the majority or the dissenters in Boumediene did a better job of constitutional interpretation. I'm also not saying whether I think any of the Justices went beyond interpretation and picked the result they believed would do the most good. I'm not even talking about whether ideas about what is good belong in proper constitutional interpretation.
I'm only saying that Yoo contradicted himself.