Repudiating Presidential Power

Jonathan Mahler’s piece in the New York Times yesterday highlights what might be easy to overlook about the SCOTUS of recent years: they have broken with the White House when it comes to matters of executive power and national security . (Well, at least SOME members of the court have.)

As demonstrated by last Thursday’s Boumediene v. Bush decision—which restored the writ of habeas corpus for detainees at Guantanamo Bay in a 5-4 ruling —the Supreme Court has not hesitated to challenge the opinion and viewpoint of President Bush. In fact, according to Mahler, Boumediene was the fourth time the Court has defied the president in such decisions. Why the seeming change?

Well, it isn't because Chief Justice Roberts had his justices take a crash course on national security and war studies. Nor is it that the court simply has more gumption to stand up to the president than it ever has before. Geoffrey Stone, a University of Chicago law professor, contends that “it’s less about the court and more about the executive.”

In other words, the Bush White House’s overly aggressive efforts to chip away at the Constitution’s integrity have spurred an equal and opposite reaction from the Supreme Court (or, again, at least some members of the Court) . The court’s actions (or reactions) suggest that Bush’s executive branch has fought harder than any other to weaken the Constitution, or even circumvent it altogether . It’s a troubling approach, to say the least. But there is some solace to be had in the fact that the Supreme Court, even one with a decidedly conservative bent , has fought to preserve these fundamental rights. Of course, it was a 5-4 decision, so the future of the Court hinges on a very narrow margin. It won't take much for the justices who embraced such expansive views of executive power (you know who you are, Chief Justice Roberts and Justices Scalia, Thomas, and Alito) to assert their vision of the law.

There are still more enemy combatant issues that could face the Supreme Court in the foreseeable future. Boumediene was a critical victory and we must do all we can to ensure that when and if the Court is faced with another threat to the Constitution, it will once again push back against unchecked executive power.