Last week in the Hamdan v. Rumsfeld case, the Supreme Court declared that the military tribunals used to try captured terrorists are unlawful and in violation of both federal and international law. This, despite Congress' clear intention in the Detainee Treatment Act (DTA) to deprive the Supreme Court of jurisdiction (i.e., constitutional and statutory authority) to hear cases of this type. 

Under the DTA, the only court that is authorized to hear appeals brought by captured terrorists is the United States Court of Appeals for the District of Columbia (commonly known as the "DC Circuit"), which had ruled in favor of the federal government.  Nevertheless, the five liberal justices of the Supreme Court (Stevens, Ginsberg, Souter, Breyer, Kennedy) concocted an explanation for why the DTA does not mean what it says, and then invalidated the military tribunals established by President Bush and the Department of Defense as part of the fight against international Islamic terrorism.  For a detailed discussion of the Hamdan decision, see here and here.

My question is, quite bluntly, if the Supreme Court lacked jurisdiction to hear this case, then why should the President, the Congress, and the American people obey its ruling?  Why should we allow five unelected, unaccountable, and unrepresentative judges decide one of the most important issues of the day —— when there is no proper constitutional and statutory basis for the authority they purported to exercise?  Doesn't this turn the entire notion of constitutional government and the rule of law on its head?  A purer example of the imperial judiciary has rarely been witnessed.

Furthermore, what we see in Hamdan calls into doubt the strategy offered by those who argue that the societal damage caused by the Supreme Court can be limited by enacting legislation that restricts its jurisdiction, e.g., over abortion or gay marriage or First Amendment issues.  Clearly, if the justices of the Supreme Court think an issue is important enough, they will "find" jurisdiction and proceed to issue their Olympian pronouncements about how the remaining 300 million of us should be living our unenlightened lives.

Why does the Court act this way?  It's not just the justices' overweening arrogance.  The justices also know that, as a practical matter, the rest of the country will acquiesce in its rulings. This is the real source of the Court's tyrannical ambitions. As Lord Acton's dictum goes, power corrupts, and absolute power corrupts absolutely. Well, the Supreme Court enjoys the closest thing to absolute power in our society, because the rest of us —— including the other supposedly co—equal branches of government —— refuse to stand up to the Court, even when it clearly and egregiously oversteps its bounds.

Indeed, the Supreme Court does not even feel the need anymore to issue unanimous decisions so as to enhance the legal and moral legitimacy of its more controversial decisions, as it did in 1954 in Brown v. Board of Education (a correct decision, of course).  The Court knows that the rest of the country will slavishly follow any and all orders issued by a mere five justices, no matter how unfounded, extreme, and damaging the decision.  See, e.g., Planned Parenthood v. Casey (1992), Lawrence v. Texas (2003).

The truth is that the Supreme Court's actual authority is only as deep as the willingness of the other branches of government and the American people to 'obey' its commands.  At some point, we have to say, enough is enough.  I think we have reached that point with Hamdan.  In my opinion, the President and Congress should treat the Court's decision respectfully but as advisory only, and abide only by those aspects of the decision that they agree are in the national interest. 

Would this trigger a "constitutional crisis"?  Perhaps.  But the alternative is to permit the Supreme Court to exceed its own constitutional authority and decide issues that it has no authority to decide.  This is the very definition of a constitutional crisis —— one that we have been living with for several decades.  It's high time to stop kow—towing to Supreme Court decisions that are not properly grounded in the Constitution or federal law.

The Hamdan decision is part of a larger pattern whereby elite liberal institutions, e.g., the Supreme Court and the New York Times, increasingly consider themselves to be the supreme arbiters of the national interest, and to be authorized to undermine the policies and decisions made by the elected branches of the federal government.  At some point, the federal government and the American people have to stop "enabling" this harmful behavior.  That point is now.

Steven M. Warshawsky    7 3 06