Roger’s Rules

McCarthy to the Rescue, or: How to Deal With Judicial Oligarchy

“It’s such a strange animal: When attacked, it defends itself.”

I first heard this bit of proverbial wisdom at the apartment of Samuel Lipman, the founding publisher of The New Criterion. I don’t remember exactly what the subject of discussion was and I don’t even remember whether it was Sam or one of his guests who uttered the witticism. Witticism? Yes, that’s right: the idea, the shared assumption, back then (we’re talking twenty years ago) was that of course an animal (a community, a society) will defend itself when attacked.

Can we indulge in the same assumption today? I wonder. If the recent activity of the Supreme Court is any indication, the answer might well be: probably not. I am thinking, of course, of the Supreme Court’s latest suicide pact, aka, Boumediene, the June 12 ruling brought to you by the most powerful man in America, Justice Anthony Kennedy, who in his wisdom cast the deciding vote in a 5-4 split that enemy combatants (he had our guests at Guantanamo Bay in mind) deserve the same legal rights and protections that American citizens on US soil enjoy.

In his dissent, Justice Scalia witheringly noted that the decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.” Let’s say Justice Scalia is correct (as I think he is). Would it matter to Justice Kennedy and his high-minded peers who voted with the majority? Or are they subscribers to the Fiat justitia ruat caelum school of jurisprudence–the school that Justice Robert H. Jackson warned against in 1949 when he dryly observed that the Constitution is “not a suicide pact“?

Is Justice Kennedy the sort of animal that, when attacked, defends himself? Maybe not. But does that fact mean he has the prerogative to decree that the American people should join him in his existential helplessness and moral nihilism?

I say No, and I am delighted to note that Andrew McCarthy has intervened with a characteristically brilliant piece over at NRO making the legal argument against Justice Kennedy’s latest effort assert the claims of judicial supremacy and make Americans more vulnerable to their enemies.

McCarthy’s piece is sure to bring howls of anguish from the politically correct partisans who believe in rule by judges. His bold opening gambit is custom made to cause apoplexy: “It’s time,” he writes, “to suspend the writ of habeas corpus.”

“Oh my God, can this right-wing fanatic be serious?” Hold on to your copy of The New York Times, Virginia, and listen to what he says:

I’m not talking about suspending the old writ of habeas corpus, the one that protects all Americans inside the United States.

I’m talking about suspending the new writ invented on June 12, 2008. The faux writ that Justice Anthony Kennedy and his four associates in the Boumediene majority weaved out of whole cloth. The writ that runs only to the protection of America’s foreign enemies in a war Americans overwhelmingly support. The writ that purports to extend the jurisdiction of the courts – which is to say, the rule of judges – anyplace on the planet where the federal government acts and where the American military fights.

I am talking about restoring the separation of powers and the proper, limited role of the United States courts.

Separation of powers, eh? Limited role for the United States courts? What a novel idea, Mr. Madison! Grand proposition, Mr. Hamilton! Why didn’t we think of that?

McCarthy’s entire piece is a must-read document for anyone who cares about 1) the separation of powers 2) American security, 3) the rule of law (as distinct from the rule of lawyers and judges). But let me conclude with these wise reflections on the significance of the Court’s decision in Boumediene and what we can do about it:

Let’s back up for a second. If someone were to posit a general suspension of the writ of habeas corpus enshrined in Article I, Section 9, of the Constitution, that would indeed be a radical proposal. It is not what I am suggesting.

What is radical, though, is Boumediene. Prior to June 12, 2008, when the ruling was announced, there was no writ of habeas corpus outside sovereign American territory. But five voracious justices now say not only that there is a global writ – i.e., that the legitimacy of government action always and everywhere depends on its capacity to win judicial approval. The justices further audaciously declare that this new global writ vests judges with the power to probe and reverse combatant determinations no matter how fastidiously any system defers to our enemies’ “rights” – and regardless of whether that system has been designed by the military or even Congress.

That is not democracy. It is judicial oligarchy – and nothing in our Constitution requires that we stand for it.

What I am thus proposing is that Congress simply return us to the law of the United States as it existed, soundly and through innumerable crises, for 219 years preceding June 12. Make clear that we are not suspending the traditional writ: we must not disturb the core function our courts perform in ensuring our domestic rule of law. But suspend the writ outside the United States (where it never ran in the first place) as to all non-Americans (who were never entitled to its protection in the first place). We must reject the perilous new world of enemy habeas and extra-territorial judicial fiat that has been in place not for 219 years but for one month.

Remember this: Boumediene “is not democracy. It is judicial oligarchy – and nothing in our Constitution requires that we stand for it.” Write your Congressman. Get your friends to write their Congressmen. Let’s show them that, notwithstanding the preening tergiversations of Justice Kennedy, we are still animals that, when attacked, have the will to defend ourselves.