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Emily, apart from what you think of Chief Justice Roberts, what do you think of the current role of the Supreme Court in American society as a whole?
It seems to me that the Supreme Court today has a smaller role in shaping the public policy agenda of the United States than it has had in recent memory. The court takes very few cases. For the most part, it takes cases only when lower courts disagree on the preexisting state of the law. And its decisions have tended to be really narrow: Even opinions that play out rhetorical battles have tended to have relatively small stakes. The court clearly has a role—no one disagrees with that—and of course there is disagreement as to what that role should be in hotly contested cases. But in general that role is a modest one, and the level of disagreement is small beans.
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Over at Slate's "Breakfast Table," Walter Dellinger and Jack Goldsmith have credited the composition of the docket for explaining why, for a time this term, the court looked like it had gone moderate on us and forgotten its 5-4 habits. (Give Tom Goldstein points for predicting much of this back in September.) Now that the term is over, of course, we know that it ended in familiar 5-4 fashion in the big-bang cases (Gitmo, child rape, guns). We know from the stat masters at Scotusblog that 17 percent of cases split 5-4 this year—a lot less than last year, which is the outlier at 33 percent, and between somewhat and a bit less than the previous several terms. After Scotusblog factored in the rarity of 9-0 decisions, it called this term "the most divided in recent history.”
That may not be how most of us will remember it, but in the NYT, Linda Greenhouse makes the same point in singling out as the term’s main theme the enduring influence of Justice Kennedy. Jeffrey Rosen, on the other hand, in TNR sees the term as a lesson in division minimized and writes another love letter to Chief Justice John Roberts in which he calls my much more skeptical judgment of Roberts “premature.” I do give Roberts props for a vote this term—he was in the majority in the 7-2 decision that found a right to sue for retaliation in the Reconstruction-era law written to give former slaves equal rights to make contracts. In that case, Roberts went with precedent over textualist upheaval. But one vote doesn’t a uniter make; in the biggest rulings of the term, Roberts was on his usual side of the ideological split. My feeling about the chief justice continues to be that he’s powerful precisely because he’s smoother than Scalia and Thomas. He doesn’t alienate his colleagues with inflammatory rhetoric like Scalia or bulldoze precedent like Scalia and Thomas. He is more careful. That means he’ll need more time to bring about major shifts in the law, on some fronts, but his votes continue to suggest that he will move the court to the right when he can. I still don’t see the case for supporting Roberts’ nomination and opposing Alito’s, or simply for heralding Roberts as a bullet that liberals dodged, as Rosen puts it. He sees Roberts’ narrow opinion writing as “the only thing standing between them and a Court eager to roll back progressive reforms.” Isn’t there more evidence, again this term, for that thing being Justice Kennedy?
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Revolutionary ideologies always look good until they prevail; then their latent seeds of destruction sprout and conflagrate. Such is the case with originalism, and Heller provides an opportunity to see this process in action. To see why, imagine that, to the surprise of everyone, Clarence Thomas retires from the court next year and President Obama replaces him with a moderately liberal lawyer whom I will call X. In X's first term, another Second Amendment case reaches the Supreme Court. X reads the majority and dissenting opinions of Heller and decides that Justice Stevens' dissent makes the better originalist case. He writes a new majority opinion that adopts Stevens' dissent and overturns Heller.
What is the Heller-supporting originalist to say about this behavior? He can argue until blue in his face that Scalia was right and Stevens was wrong, but Stevens' account was plausible enough to obtain the support of three other justices and various knowledgeable commentators. What he can't plausibly argue is that X should have respected the Heller precedent. After all, if originalism means anything, it must be that precedents should be given no, or little, weight. This idea is the source of originalism's power and radical nature, but it also ensures that originalist opinions will, as precedents themselves, be short-lived. And because the constitutional text is ambiguous and the contemporary setting is remote from our understanding, it will always be as easy for liberals as for conservatives to generate whatever results they want in the originalist idiom, which guarantees that the triumph of originalism, if that is what Heller represents, will have no particular political implications for American government that cannot be traced to the ideological leanings of whoever happens to sit on the Supreme Court. Policy and political judgments will continue as before muffled underneath a new blanket of rhetoric. That faint sound you hear is laughter echoing in the tombs of the legal realists.
Justice Scalia, aware of this problem, calls himself a "faint-hearted" originalist and acknowledges that certain precedents must be obeyed. But which? Why should his Heller opinion constrain a future liberal justice who thinks that its originalist interpretation is wrong? If the answer is that this justice should follow it just because Scalia was there first, then it is inevitable that, as precedents reflecting good-faith but erroneous interpretations of original sources or bad-faith manipulations of them pile up, doctrine will eventually diverge from origin, and originalism will become moot. If the answer is that he shouldn't, then precedents will last only as long as the current majority on the Supreme Court, and the Heller precedent, too. Either way, originalism cannot last.
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Justice Samuel Alito, for example, who blew a cool $500 million for his fellow Exxon shareholders—at least, if conventional wisdom is correct that Alito would have broken a 4-4 tie and deprived the Exxon plaintiffs of punitive damages if he had not recused himself because of his Exxon stock holdings. You would think there would be room for a bargain here. Exxon should have paid Alito a small sum of money—say, $1 million—to sell his stock, so that Alito could have cast a vote for Exxon without violating the code of judicial ethics. After all, Exxon would not be paying Alito to vote for Exxon; it would be paying Alito to cast an impartial vote after shedding his Exxon stock and thus his pecuniary interest in an Exxon victory. The plaintiffs would lose their punitive damages, of course, but they cannot reasonably argue that their case be heard by eight impartial justices rather than nine. Aside from the plaintiffs, there would be gains all around. Alito's paltry salary would be supplemented, Exxon's shareholders would be up $499 million, and the public's interest in the impartial adjudication of legal disputes by the nation's highest court would be served.
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Jack—You really should not be required to repeat yourself, and so I apoligize for making you go through it all again. But at last, I get it! It's not the justices who are acting strategically, only the presidents who appoints them. Once they appoint them, justices do as they do. Which is why Reagan appointed Kennedy—he knew he passed the reverse litmus test on Roe. The theory is working great. After all, a nonstratgegic Republican president would have appointed someone like Scalia. Or, even dumber, Bork! Oh, wait ... OK, maybe Reagan's not such a strategic figure. It's not like Bush pere would have appointed someone who thinks Roe should be overruled, like, say, Clarence Thomas. Oh, wait, again ...
It's a problem for a theory, I think, when neither of the actors in a position to act in accord with it (that is, the presidents or the justices) seem to be ... reliably acting in accord with it. And while the Roe right in some form thus far survives, some think that has more to do with the Senate refusing to do what the prez wanted (see Bork above) than with the prez faking everybody out.
But why should we care about this debate? One reason might be that it would warn supporters of the Roe right from taking false comfort in the political-calculation theory's prediction that it will survive a long line of Republican administrations—just as it would encourage Roe's opponents to take heart!
In short, it's my contention that elections matter more for constitutional development than, paradoxically, for the super-sophisticated theory of electoral-jurisprudence theory (with its assumption of canny presidents—and maybe even justices—always seeking out some clever equilibrium) indicates.
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At least one leading conservative believes the court fell down on the job in Heller if it views its job as making decisions in ways that create political debates sure to help Republicans, adding further support for my view that the claims by some that the court's approach to Roe (bend it, don't break it) thus far is best explained by a desire to keep that precedent alive for the purpose of ensuring Democrats lose. Jack?
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"Democracy dies behind closed doors," Judge Damon Keith wrote in an opinion for the 6th Circuit Court of Appeals regarding media and public access to terrorism cases.
Our theory of government also dies in hearings like this one, featuring David Addington and John Yoo—memorably described by Dana Milbank and Emily Bazelon in a pair of columns for the Post and Slate, respectively. Calling Addington and Yoo hostile witnesses doesn't begin to describe the level of their contempt for Congress, the hearing, and the democratic processes that brought them to testify by way of a subpoena.
Check out this exchange:
Could the president ever be justified in breaking the law? "I'm not going to answer a legal opinion on every imaginable set of facts any human being could think of," Addington growled. Did he consult Congress when interpreting torture laws? "That's irrelevant," he barked. Would it be legal to torture a detainee's child? "I'm not here to render legal advice to your committee," he snarled. "You do have attorneys of your own."
He had the grace of Gollum as he quarreled with his questioners. In response to one of the chairman's questions, he neither looked up nor spoke before finishing a note he was writing to himself. When Rep. Debbie Wasserman Schultz, D-Fla., questioned his failure to remember conversations about interrogation techniques, he only looked at her and asked: "Is there a question pending, ma'am?" Finally, at the end of the hearing, Addington was asked whether he would meet privately to discuss classified matters. "You have my number," he said. "If you issue a subpoena, we'll go through this again."
Crikey. No wonder they kept Addington in the shadows; public advocacy is clearly not his gig.
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continue reading at Balkinization ...
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If I had to describe the major theme of the October 2007 term, it would be the court as a minimalist court with no surprises. There were no major revolutions this term. Even the big cases were narrow and interstitial. The court mostly took baby steps. It may not seem that way this week, with big cases like Boumediene, Heller, and Kennedy v. Louisiana. But step back a bit. Even these big cases were actually really narrow. Boumediene went where the court very strongly hinted it was going in Rasul v. Bush back in 2004: The court's reasoning was limited to the few hundred detainees at Guantanamo Bay and did not order anyone's release. Kennedy v. Louisiana filled in a detail hinted at in Coker v. Georgia. The court's opinion deals only with child-rape capital cases, of which Kennedy's own case was (as far as I know) the only conviction. And Heller establishes an individual right without answering the degree of scrutiny or incorporation, and while indicating that traditional gun-control laws are all constitutional. This isn't to say that there were no important cases this term. But on a historical scale, the 2007 term is revealing a minimalist court: It intervenes rarely, doesn't say much when it speaks, and leaves most battles for another day.
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C'mon, Orin, you don't give us enough credit with your non-Volokh post. There are plenty of truck-ownin', tobacco-usin', gun-shootin' folks here at Slate. Admittedly, we're a bit of a discrete and insular minority within the Slate family, but I don't think your Heller discussions are unwelcome here.
I'm going through the opinion now, and one thing that leaped out at me was the limiting language that Justice Antonin Scalia chose to use in his opinion. He carves out two very important limitations on the Second Amendment right—so big that they encompass nearly all gun control in existence today, save those most extreme bans like that in DC:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [cites omitted]
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
So, if I understand this right, Scalia's got no beef with "felon in possession" statutes like those at the heart of the Justice Department's Project Safe Neighborhoods strategy. And he's got no beef with states banning assault rifles, machine guns, rocket-propelled grenades, and other instruments of violence that are firearms but may be just a tad bit dangerous for you or me to keep and bear. And I think Scalia's also cool with background checks, registration, and waiting periods If I'm adding up the scorecard right, that means most federal, state, and local gun control in America survives Heller.
What do you think?
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In case some readers here may have tried to visit the Volokh Conspiracy today, we're, um, having problems due to incoming traffic. The site is not letting any of us bloggers log in to post, so although we have a ton of posts we want to write about Heller, we can't actually log in. I may post some stuff here instead, although posting on a Second Amendment case here at Slate instead of at Volokh is kinda like talking about adjusting your carburetor in a Harvard Square bookstore instead of in a sports bar.
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Adam, do you mean to tell me I still can't hunt in Rock Creek Park? And I can't go on homosexual romps there, either? What's the point of having a Constitution if it's not going to give me any rights? So, fine, if I run down a deer, I'm keeping my venison for myself. Scalia can't have any. Neither can you.
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Yesterday, in Giles v. California, Justice Scalia, true to the originalist method, kept to the text of the Constitution and enforced the Confrontation Clause for the benefit of a criminal defendant complaining that his conviction was wrongful because he did not have the ability to cross-examine the out of court testimony of his girl-friend about the defendant's pattern of violent abuse by reason of the fact that, well, he killed her.
Powerful concerns about domestic violence argued to let the testimony into court in Giles, but the Justice held fast even as he was sympathetic to the need to address domestic abuse. The words of the Constitution matter, he said in Giles, and "It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts' views) those underlying values. The Sixth Amendment seeks fairness indeed -- but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen."
Giles is hard to explain to the average citizen, but it's principled.
Today, Justice Scalia takes the Second Amendment which so unmistakeably by text and context -- not to mention legions of lower court precedent -- protects the right of the people in the States to maintain a well-regulated militia, as against the threat of tyranny represented by a standing army and Congress' Article I power over militias, and by various linguistic tortures, switches round the phraseology until the Amendment advances the contemporary interest of those citizens who favor possessing arms for self-defense within the home. As a matter of human liberty, the right found by Justice Scalia may well advance the values lying behind the words of the Constitution in 2008, they just aren't the Constitution as it was originally understood.
More than once, I have enjoyed the lectures of the erudite and witty Justice Scalia on the importance and legitimacy of original understanding and fidelity thereto. I just hope Justice Stevens is up to carrying on the lecture tour.
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But if you really do want to go hunting, Rosa, I hope your first kill is the deer that ran out in front of my truck in the Northern Virginia suburbs on Sunday!
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Now, Rosa, before we get all indignant or sarcastic (and I certainly hope you were being sarcastic), let's not allow ourselves to fall prey to exaggerated readings of today's gun decision. For example, let's not overlook Pages 54-55 of the court's opinion:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... Although we do not undertake anexhaustive historical analysis today of the full scope of theSecond Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
There a lot to digest in these lengthy opinions. (And I certainly won't get through them anytime soon, at least not during working hours.) But to suggest that this case opens the door to hunting in Rock Creek Park is a bit like suggesting that Lawrence v. Texas legalized homosexual romps in Rock Creek Park. Let's all agree to take a few deep breaths before we go around the bend.
And besides, there are more important decision to attend to, like Morgan Stanley ...
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... in Rock Creek Park! At last! (See the Supreme Court's decision in District of Columbia v. Heller, striking down the D.C. ban on handguns.) When I bag my first D.C. deer with my handgun, I will send a shoulder of venison to Justice Scalia in grateful admiration. If I manage to take out any muggers—or bystanders caught in the crossfire—I will send him their carcasses as well.
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I spent an hour yesterday debating Boumediene with David Frum on Bloggingheads TV. As is always the case in these debates, we finished and then I thought of all the things I forgot to say. Maybe some of you will go watch the "diavlog" and add to the debate yourselves. (I'm talking to you, Marty Lederman!)
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Phil, we agree that there is a place for law in war, and the reasons you give are excellent ones; but there are a series of complicated line-drawing puzzles, and I'd like to hear where you draw the lines. Let's consider two cases:
1. a) A tank commander must decide whether to fire into a mosque where enemy soldiers have taken cover. Or b) an Air Force officer must decide whether to order an air strike against an al-Qaida safe house in a crowded neighborhood in Baghdad.
2. a) A squad of American soldiers must decide whether to detain an Afghan villager who local witnesses say has transferred weapons to al-Qaida fighters. b) Months later, military officials must decide whether to release this person or continue to hold him.
Both sets of decisions are governed by international and domestic law—and I don't dispute the claim that it may well be in the interests of the United States to comply with international law (though I think this claim is more complicated than others do).
Let's now compare case 1b and 2b. As I understand it, currently the military vets bombing targets with military lawyers. Do you agree that this is a sensible practice? If so, why not use military judges rather than military lawyers? Wouldn't judges be more credible? And then why not civilian judges rather than military judges? Wouldn't civilian judges have more credibility still (and, according to Deborah, wouldn't they do a better job because they are so good with facts and law)? Now let me ask this question from the other direction. If you think that civilian judges should review the detention decision in case 2b, why not have civilian judges involved in the bombing decision of 1b (or civilian federal magistrates, if you want, who could issue kill warrants in the same way that they currently issue search warrants)?
Let's return to 1a and 2a. If we think civilian judges should be involved in cases 1b and 2b, or even just 2b, why not have them involved in the two (a) cases? True, we wouldn't expect them to ride on the tanks or set up shop at air bases. But we could easily have them review the cases after the fact. Indeed, a soldier who blows up a mosque for no reason or for a bad reason could be tried by a military judge for violating the laws of war. But if we prefer to have civilian judges review detention decisions, why not have a civilian judge conduct the trial of the soldier who destroys the mosque? After all, we don't trust the military, do we? Isn't this distrust of the military, or at least of the executive that controls it, the entire basis of Boumediene?* Why not require that targeting decisions—of all kinds, even at the rifle level—be reviewed by civilian judges after the fact, allowing the civilian judges to convict soldiers of violations of the law of war or domestic law?
And, as my air-strike example is supposed to illustrate, I think the distinction between operational and post hoc breaks down. If I am a soldier and I know that I can be put in jail for blowing up a mosque, then I will want operational legal advice for ambiguous cases, even if I don't need a warrant. The Army currently supplies operational advice to air commanders but not to tank commanders. Why does this make sense, exactly? Or does it?
Now, one could make the "this is a new kind of war" or "this is not a war at all" argument, and say that the United States can't detain people without civilian-judge level due process, indefinitely, in a nontraditional war with no foreseeable end without destroying its reputation for caring about the rule of law. But if this argument is correct, it applies equally to the targeting decision. It is, after all, even worse to drop bombs on houses and blow up mosques than to detain people indefinitely, and so if civilian judges are necessary to establish credibility for detentions, then they should be necessary to establish credibility for targeting. The arguments that various people have made in favor of Boumediene's result does not offer any principled basis for giving military judges or lawyers any role at all, in any type of "military" decision in our current nontraditional quasi-war, except to the extent where logistics require an on-site, in the midst-of-hostilities legal determination, and even then subsequent civilian judicial oversight should remain available after the fact.
Perhaps your view is that civilian judges can handle military detentions because they handle civilian detentions all the time. But civilian judges also handle civilian killings all the time (for example, police killings). The relevant consideration is not the act itself but the reasons for it: Can civilian judges handle military judgments as to the necessity of detaining one person and killing another? Does their experience with law enforcement prepare them to evaluate the political and national security reasons for detaining one person and killing another?
*Correction, June 25, 2008: This post originally misspelled Boumediene. Apologies to those who thought that the post concerned the former president of Algeria.
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Eric, your last post regarding judges on tanks made me chuckle. In my mind's eye, I pictured one of the judges I know (or maybe Convictions' own Judge Nancy Gertner) sitting in the loader's seat of an M1A2 Abrams tank, riding along next to the tank commander, offering targeting and other advice while in combat. Of course, it's a silly image for many reasons, not least because those flowing black robes just wouldn't work well inside of a tank.
Seriously, though, your argument is something I hear a lot from lawyers and scholars who criticize the role of law and lawyers in war (and I consider you to be one of the most thoughtful and sophisticated critics in this area). The argument goes that if we let law run amok, then we will soon force our soldiers at the very tip of the spear to consult lawyers before they squeeze the trigger. As you rightly point out, this just won't work. Decisions in combat must often be made in an instant, under very difficult and stressful conditions, with life or death consequences. There is little room for legal consultation.
But that is not to say that there's no role for law in combat, nor in post-combat decisions such as whether to hold a particular detainee. Law plays an incredibly important and valuable role in warfare—especially the kinds of wars we are fighting in Iraq and Afghanistan, what retired British Gen. Sir Rupert Smith calls "wars amongst the people." In this kind of conflict, the people are the prize. Law plays a key role by conferring legitimacy on military operations, helping to earn the support of the people. By accepting legal restraints on combat operations, commanders enhance their effectiveness, even while limiting what they can do with force. It's a counterintuitive lesson, particularly for those steeped in realpolitik where power matters above all else. But it is an important strategic concept recently codified in the military's new counterinsurgency manual and proven in Iraq and Afghanistan every day.
But I don't think the argument is over operational decisions, Eric. The argument here is whether we should allow judges to participate in post hoc combat decision-making: weighing the evidence against particular detainees and deciding whether their detention is lawful. And here we differ. I think this is precisely what judges do, and what the judicial institution is most competent to do, and what all its rules and procedures are designed to do. Of course, this will have some effect on military operations, just as judicial decisions affect what cops do in the field. But on balance, I think those effects will be positive, given the important role that law now plays in war.
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Suppose that we simplify the court's Eighth Amendment jurisprudence greatly and pretend that a "national consensus" against a certain type of punishment exists when 10 states or fewer authorize that punishment and not otherwise; and that when a national consensus against a punishment comes into existence, the courts will strike down that punishment in any remaining state that continues to use it or any state that introduces it.
This rule acts as a ratchet. When a punishment falls to the 10-state threshold, it ceases to be permissible. If people in the various states change their minds and come to believe that the punishment is justified, legislatures will not be able to enact the punishment without violating the Constitution. It seems likely that they will therefore not bother, and so a new consensus in the other direction cannot get started. Perhaps, in the rare instances when a national consensus will develop quickly, dozens of states will enact the law even though it violates the Constitution, and courts will recognize a change in the consensus. But this is likely to be rare, and it loads the dice against national consensuses developing in favor of harsher punishments.
If the Eighth Amendment is just about national consensus or some such thing, why can't a consensus emerge in favor of a punishment that previously had been barred? The dissent in Kennedy v. Louisiana makes this argument, which is acknowledged but rejected (without any attempt at justification, as far as I can tell) by the majority.
Is there any justification in political, constitutional, or moral theory for such a ratchet? I don't see one. There is an old, simple-minded Whig view that human history reflects progressive moral development, and perhaps the idea is that courts can prevent temporary backsliding caused by public overreaction to ephemeral events—and such rhetoric about society "maturing" can be found in Justice Kennedy's majority opinion. But this view took a hit in the 1930s and has never recovered. And even if it were correct, a society might "mature" by introducing new harsh punishments against behavior—such as spousal and child abuse, or, say, honor killings of daughters—that earlier generations found unobjectionable. Current Eighth Amendment jurisprudence, or at least the logic behind it, would block such moral evolution.
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Since we may have a few more minutes before the big news from the last days of the Supreme Court term, I had probably better offer at least a brief response to Eric's last post. As much as I love the imagery of Scalia astride a tank, that's of course not particularly what I was saying.
But as I am generally a fan of the idea of agency expertise, let me pick up on that point. In the administrative-law context, it might not be too overly broad to say that courts "defer" to an extent to some kinds of executive-agency decisions for two main reasons: (1) because agencies indeed often have invaluable expertise, and more critical here (2) because the agency has followed a meaningful, credible (not to mention highly regulated) process consistent with the Constitution and laws. For reasons the Boumediene decision describes, an agency process like the CSRTs wasn't worthy of any kind of deference. This case was made perhaps most powerfully by all of the military experts who told the court, the press, and anyone else they could find that the process should not be trusted.
The far more disturbing part of Eric's post, though, is this: "[N]o one has a clear idea about the appropriate degree of dangerousness—including the tolerable risk of dangerousness—that justifies continued detention, so that a legally enforceable rule could be stated in advance." This isn't a statement about the relative competence of different institutions. It's a statement, at least as I read it, that there are a set of things the U.S. government has to do that simply can't be described, defined, or constrained by the rule of law. If that's a fair account of the point, Eric, we'll just have to agree to disagree.
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Dr. Jim Dobson is a likeable man of wit and intelligence whom I have long admired for his support for the family.
Recently, however, he—and his national political director, Tom Minnery—undertook on Dobson's nationally syndicated radio program to engage in a hypercritical distortion of an influential and powerful presentation on faith (a "Call to Renewal") by Sen. Obama in 2006.
The radio criticism of Obama has a number of facets to it: Dr. Dobson apparently believes the United States is a Christian nation rather than a nation of many faiths. Historically and today, there are indeed more Christians in America than believers from other faith traditions, but what follows from this? Sen. Obama would suggest respect and appreciation for the influence of Christianity while also appreciating that there are people of other faiths, and of no faith, who are not to be treated as second-class citizens. Surely Dr. Dobson agrees, right? So what's the point?
Sen. Obama also quoted a number of Old and New Testament passages, including some dietary laws that governed the Israelites (like not eating shellfish) to make the obvious point that even if one strictly followed this dietary restriction as a matter of faith in one's own life, it could not simply be codified to bind people of other faith traditions—at least not without majority approval and a lot of angry shellfish eaters.
Dr. Dobson thinks this mocks the Bible, but it is merely underscoring that we have an obligation in the public square to speak in universal or accessible terms.
Obama also said Jesus' Sermon on the Mount is "a passage that is so radical that it's doubtful that our own Defense Department would survive its application." OK, I guess we could ask whether or not Jesus would think the purveyors of preemptive war to be "peacemakers," but again Dr. Dobson's point is more than a little obscure. And to assert that Obama "is dragging biblical understanding through the gutter," more than a little absurd.
Dr. Dobson also attacks Obama for his support for abortion rights. Like Dobson, I disagree with Sen. Obama here as well. But Dobson has mischaracterized the senator's view. Obama believes the woman herself must decide the abortion question. The senator acknowledges the decision to be a "profoundly moral one" and one he would advise a mother to make in favor of life and only after talking with her clergyman. In a meeting with me and other faith leaders a week or so ago, the senator reiterated that he is not "pro-abortion," and that he wants to "discourage" the practice by encouraging personal responsibility as well as enhancing adoption and comprehensive education that would reduce the number of unwanted pregnancies.
Could the senator do more? Sure, and he is open to reasoned argument. Dr. Dobson should make one. The senator's point: All of us as we speak across religious lines need arguments beyond what we accept as doctrinal teaching in our particular faith tradition. How Dr. Dobson misinterprets this to suggest that either Dobson or my religious view would be excluded from the public debate or that "we have no right to fight for what we believe" is a mystery.
There is nothing in Sen. Obama's speech to suggest any denigration of faith generally, Christianity specifically, or Dr. Dobson personally. Far from it. Indeed, the tone, content, and purpose of the speech were all quite the opposite and obviously so.
In Sen. Obama's speeches, it's not surprising to hear references to Lincoln and Martin Luther King and Frederick Douglass. Sen. Obama regularly touches my Catholic soul as well by showing a genuine knowledge of the work of Dorothy Day. In this, Obama tells his audiences that it is an "absurdity" to insist that morality be kept separate from public policy.
Don't misunderstand. Sen. Obama is not the equivalent of a televangelist, nor should he be. Having urged his liberal colleagues to see how much of American life is grounded in the Judeo-Christian tradition, Sen. Obama makes a request of conservatives like myself—namely, try to fully understand the liberal perspective on the separation of church and state. Not the infamous "wall of separation" that bizarrely mandates affirmative secularity disguised as neutrality, but the perspective, according to Obama, that separation more readily protects church from state than the opposite.
This sentiment, unlike the exclusionary view invented by the late Justice Hugo Black in the late 1940s, is as old and wise as Alexis de Tocqueville, who cautioned churches against aligning too closely with the state for fear of sacrificing "the future for the present." "By gaining a power to which it has no claim," Tocqueville observed, "[the church] risks its legitimate authority."
Sen. Obama's approach to faith is strong, but it is not exclusionary. He genuinely seeks to have his efforts bridge the religious and ideological divides on issues ranging from abortion to the importance of the American family to health care that respects the objections of conscientious religious believers to AIDS, climate change, and human rights.
Like all Americans, Dr. Dobson has every right to advocate public policy informed by his abiding Christian faith. I will be counting on him to continue to do so, but he will improve his chances of success by not pretending to lack the most basic understanding of democracy, which we all know he has, or by misreading and mischaracterizing the views of one of the country's most eloquent defenders of the importance of faith—maybe since George Washington opined that it was indispensable to the prosperity of the nation.
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Deborah thinks that federal judges are in a better position than military officials to determine whether a person who has been detained on the battlefield should be released or not:
For a long, uninterrupted period of time now, nonmilitary judges have been making daily decisions about, for example, whether an individual committed a bad act or not, whether (for sentencing purposes) a detainee poses a likelihood of future dangerousness, whether a detainee is mentally competent to stand trial, may be a flight risk, likely poses a risk to himself or the community (for purposes of civil commitment), and whether and to what extent information they consider in all of this is probative or reliable.
Which is just to say that judges are capable of finding facts and applying the law. But the American legal system is shot through with institutions and doctrines that recognize that judges lack the competence to evaluate the decisions of specialized agencies that are charged with particular missions and that develop for that purpose qualified personnel, procedures, institutional memories, and all the other things that distinguish one institution from another. In such cases, judges defer. Judges defer to the fact-finding, policymaking, and legal interpretation of regulatory agencies, for example. They defer to the foreign policy judgments of the executive branch. And they have historically deferred to the judgments of the military—and no doubt will continue to do so, Boumediene or no Boumediene.
Orin thinks that the problem is one of fact-finding, but that is only one issue, and not the most important. The deeper problem is that no one has a clear idea about the appropriate degree of dangerousness—including the tolerable risk of dangerousness—that justifies continued detention, so that a legally enforceable rule could be stated in advance. This has to be determined in incremental fashion, as events unfold, and only the military, with political guidance, is capable of making this judgment—a judgment about policy, security policy in particular.
The relevant question is whether a particular detainee would, if released, pose further danger to soldiers, civilians, and others, such that the benefits of continued detention exceed the many costs—including the financial cost, diplomatic pressure from foreign countries, harm to America's reputation (if any), and the harm to the individual in question. The answer in particular cases will turn on the particular terror-making talents of the detainee in question, his leadership abilities, the depth of his radicalism, the type of country to which he is to be returned (including whether authorities can keep tabs on him), the military's current logistical capacities, the current overall threat level, and much more. Note that given all these costs of detention, the release of someone who turns out to be dangerous is not necessarily an error—the judgment that the military is incompetent because it has released people who have gone back to fight is too hasty.
In any event, weighing all these factors is in the nature of a discretionary, administrative task, like that of deciding when and where to drop a bomb; judges are in no position to answer them. (I doubt that Congress is capable of, or willing to, answer them either; it would require candor that is politically inexpedient and a degree of foresight that no one possesses.) If we were to accept the implicit worldview in Deborah's post, one that does not take seriously the distinction between the judiciary and other institutions other than insisting that judges are superior, we ought to sheath judges in Kevlar robes and mount them on tanks, where they could find facts, develop a common law of national security, and enjoin soldiers to hold fire until they make the proper demonstration that a potential target poses a military threat and that destroying it will not violate the laws of war.
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Deb, I had the late great James Vorenberg for criminal procedure. He was a wonderful teacher and mentor; I was sad that he passed away before I became a criminal-procedure professor myself. I'm not sure why you think the identity of my criminal-procedure professor back in law school might be relevant. But for what it's worth, I had Vorenberg.
On the substance, I understand your argument to be that judges are as good as anyone to decide such questions. That is, even if judges are going to have a hard time with such issues, no one else is likely to be better. To reach this conclusion, though, I would think we need to make two assumptions. The first assumption is that familiarity with a military campaign and expertise in intelligence operations does not create any institutional advantage in identifying who is a terrorist. That is, identifying terrorists is a general skill; a generalist judge with no background or experience is at no disadvantage relative to those with more subject matter expertise. Second, we need to assume that the expertise and abilities of the judiciary as a whole are shared by each individual member of the judiciary. In your post, you treat "the judges" as a collective entity and discuss what "judges" can do and have done. But individual determinations are not made by the judiciary as a whole but rather by individual judges of varied experience, intelligence, and temperament.
Are these assumptions two valid? I assume you believe so, but I am not so sure. In any event, now that Boumediene has given this job to the courts, I trust you and I both hope that judges will do the best job they can with the difficult task ahead. No matter how good or bad they are at the job, that job is now theirs.
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Orin, thanks. Your latest post helps me understand better why you think judges aren't well-suited to determining whether someone belongs somewhere like Gitmo. Unfortunately, now I disagree even more.
Your core argument seems to be that regular judges will be freaked out, scared off, or just generally flummoxed by the kind of evidence you think likely to be at issue in a Gitmo status decision, evidence you