The Quiet Conservative June 12, 2008
Elevating Enemies of the State to Favored Status
Previous articles on the Supreme Court have illustrated the importance of appointing judges who
rule on the law, not make it up to suit their political ideology ( 07/04/2007). When the left
pontificates about the 'balance' of the US Supreme Court what they actually mean is appointing
justices who will use their position to promote the progressive cause rather than use their position to
fulfill their oath of examining cases based on the standards of law and the Constitution. When
Senator Schumer (D) of New York talks about a litmus test he is talking about Roe v. Wade. When
presidential contender Barak Obama (D) talks about the same he is talking about judges who will
ensure Roe v. Wade is upheld. Those on the left want judges who will use their position to find and
ensure ideological rulings regardless of what the actual laws may say.
But what about those evil conservatives such as the hated Justice Thomas? He states abortion isn't
a constitutional issue at all. It is an issue to be decided by the states. He isn't trying to overturn
anything because abortion isn't, and never has been, a constitutional issue. He is correct. It has
always been an issue for the states to decide. In the end it isn't about 'left' verses 'right', it is about
judges who rule on the law verses activist judges who use their position to make law.
Today's Supreme Court ruling in Boumediene v. Bush is a perfect example. The majority of the
court, four committed liberals and one squishy in the middle justice (Kennedy) overturned the entire
legal system evolved to handle enemy combatants caught in foreign lands fighting against the US and
held in Guantanamo Bay, Cuba. Why? Because they wanted to. From the dissent written by Chief
Justice Roberts, joined by Justices Alito, Thomas, and Scalia:
"Today the Court strikes down as inadequate the most generous set of procedural protections
ever afforded aliens detained by this country as enemy combatants. The political branches crafted
these procedures amidst an ongoing military conflict, after much careful investigation and
thorough debate. The Court rejects them today out of hand, without bothering to say what due
process rights the detainees possess, without explaining how the statute fails to vindicate those
rights, and before a single petitioner has even attempted to avail himself of the law’s operation.
And to what effect? The majority merely replaces a review system designed by the people’s
representatives with a set of shapeless procedures to be defined by federal courts at some future
date. One cannot help but think, after surveying the modest practical results of the majority’s
ambitious opinion, that this decision is not really about the detainees at all, but about control of
federal policy regarding enemy combatants."
The Chief Justice finishes his lengthy dissent with the following:
So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of
further litigation to determine the content of their new habeas right, followed by further litigation
to resolve their particular cases, followed by further litigation before the D. C. Circuit—where
they could have started had they invoked the DTA procedure. Not Congress, whose attempt to
“determine— through democratic means—how best” to balance the security of the American
people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006)
(BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose
majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible
benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers,who will now
arguably have a greater role than military and intelligence officials in shaping policy for alien
enemy combatants. And certainly not the American people, who today lose a bit more control
over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.
I respectfully dissent.
When the Chief Justice of the Supreme court recognizes the activism of judges on his own court
by saying the people are subjected to "unelected, politically unaccountable judges" it is time to take
notice of activism replacing the rule of law. Justice Scalia wrote a concurring dissent that begins as
harshly as the Chief Justices:
Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas
corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.
THE CHIEF JUSTICE’s dissent, which I join, shows that the procedures prescribed by Congress
in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees;
there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond
what the Act allows. My problem with today’s opinion is more fundamental still: The writ of
habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus
has no application, and the Court’s intervention in this military matter is entirely ultra vire
Justice Scalia, with Justices Thomas and Alito joining the Chief Justice, concludes his dissent with a
scorching rebuke:
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of
the Suspension Clause, invoking judicially brainstormed separation of-powers principles to
establish a manipulable “functional” test for the extraterritorial reach of habeas corpus(and, no
doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly
misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in
Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits
judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most
tragically, it sets our military commanders the impossible task of proving to a civilian court,
under whatever standards this Court devises in the future, that evidence supports the
confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done today. I dissent.
When you have judges who use the court and the law to promote an ideology rather than apply
their oath of office to rule on the law as written by the legislature, you have tyranny. When you
have a political body that wishes to pursue their goals by any means necessary and appoint judges
who will actively aid that agenda, you have tyranny and the loss of freedom. That has been stated
here in editorials before. Now four members of the Supreme Court are telling you the same thing.
America has been made vulnerable on purpose by those on the left. The same people who will
cripple our ability to fight terrorism are the same people who want to nationalize oil companies
(Maxine Waters), stop any domestic development of energy (Nancy Pelosi et al) stop future weapons
development and scale back the military in favor of social programs (Barak Obama).
Like slowly sinking in quicksand your freedom and safety are being slowly eroded as you sink
down into the mire of the left. The US Supreme Court decided today, 5-4, not on the law but on the
desire to elevate the enemies of the Unites States. Where is your outrage?