Love and scandal are the best sweeteners of tea. —Henry Fielding

28 June 2004

U. S. Supreme Court Wrap-up

I canceled rehearsal.

I went to the grocery and then went home and made a cake.

Cheers, I say. 

I called Madison and Brantley to see if maybe I could drop by, but no one answered, so I will stay here and maybe go out later to the cinema.

It was good I was here, I was able to help Eddie with his Accounting homework.  Who knew?

It is nearing the end of the U.S. Supreme Court's term before summer break, so they are releasing all kinds of opinions.  Today the hugely important rulings in the Hamdi and Padilla cases came down.  The court continually seems to be splitting in different ways.  These splits (who is in the plurality, who concurs, who dissents) seem to be much less political and much more personal to each of the justices.  Normally I am firmly on the side of my favorite justice: J. Sandra Day O'Connor.  Today, however, I find myself disagreeing with my favorite justice and firmly on the side of (gasp!) J. Antonin Scalia.

No one should be surprised at this court's continual insistence and expansion of its own power.  And yet I find NPR's commentators talking about that very thing and acting as though it were a surprise that the court insists on broading the scope of its own authority.  J. Kennedy's tendency to do this was even pointed out to me over a month ago by my father.  The court ruled in favor of Mr. Hamdi and in direct opposition to the Bush administration in the Hamdi case and it was right to do so.  The docket will say that there are 6 'for' and 3 'against,' but if you read carefully, you find that JJ. Scalia and Stevens agree with the majority about the administration's right to hold American citizens without access to the courts.  Only J. Thomas holds out: crazy, weird-o that he is.

The problem here is J. O'Connor's ruling, which is pragmatic, just, and on all points morally correct.  The ruling's problem is that it has nothing to do with the rule of law and everything to do with the rule of the Judiciary.  This is, in my opinion, not the role of the Judiciary.  I wouldn't go around calling this an "activist court" as so many idiots in this country do, my father included.  That is, simply put, moronic.  They are not activists.  Rather, the Rehnquist Court believes in its own ability to mete out justice more than it believes in Congress's ability to mete out justice, and seemingly a great deal more than it believes in the Bush administration to mete out justice.  The Court accordingly chooses to increase its own ability to mete out justice and curb the authorities of Congress and the Executive Branch to do so.

It is a risky thing that they do.  I have complete faith in the judiciary, but I will say this: I do not think that this is what the framers of the Constitution had in mind when they created the Judiciary.  Not that it matters.  The U.S. Supreme Court is simply that: supreme.  Efforts to get around the juggernaut of its power will fail.