Is the Habeas Ruling Really One of the Worst Decisions in American History?


As Matt Welch recently noted, John McCain is none too happy with Boumediene v. Bush, calling the Supreme Court's recognition of habeas corpus for enemy combatants "one of the worst decisions in the history of this country." Could that possibly be true? As a measuring stick, I'd suggest using The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, a new book by the Cato Institute's Robert Levy and the Institute for Justice's Chip Mellor.

On issues ranging from eminent domain abuse to the restriction of civil liberties during wartime, Levy and Mellor paint a consistent—and consistently depressing—picture of the Court upholding and enhancing government actions at the expense of individual rights. That's as good a definition of a "worst decision" as you'll ever get: state power trumping individual liberty.

Where does Boumediene fall on that scale? Even if you accept Chief Justice John Roberts's dissent, which argues that the Court permanently weakened the separation of powers by substituting its judgment for that of "the people's representatives," the decision hardly sinks to the depths of, say, Korematsu v. United States, where the majority upheld Franklin Roosevelt's internment of Japanese Americans during World War II.

In Roberts's view, Congress already protected "whatever rights the detainees may possess" via the Detainee Treatment Act, making the Court's actions both unwarranted and unnecessary. Moreover, his dissent predicts that, "the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces." If this is correct, then the real problem with Boumediene isn't the risk it poses to national security (as McCain has stressed) but its long-term political fallout. That's at least a debatable point, though I'd argue that the Court has upheld the separation of powers by exercising a necessary check on the other branches. Furthermore, as legal blogger Marty Lederman has noted:

On the basic habeas question, perhaps the most explanatory line of the majority opinion is this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." In other words, because the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base.

But for the last word, I turn to the increasingly libertarian George Will, whose column yesterday made short work of McCain's legal scholarship:

Did McCain's extravagant condemnation of the court's habeas ruling result from his reading the 126 pages of opinions and dissents? More likely, some clever ignoramus convinced him that this decision could make the Supreme Court—meaning, which candidate would select the best judicial nominees—a campaign issue.