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The U.S. Supreme Court’s risible reasoning

by Hiroaki Sato

Laws are subject to interpretations, courts are official interpreters, and the Supreme Court has the last word. That is a fact of life, though it is also a fact of life that you sometimes wonder if there is anything “supreme” about the Supreme Court. Yes, you know that individual justices come with individual agenda and attitudes. But sometimes they startle us in language and logic or in simple assertion even.

That’s how I felt, once again, about what Linda Greenhouse of the New York Times has called “the two leading cases of the past term” (October 2007 to July 2008) in her farewell piece, “2,691 Decisions” (July 13). Greenhouse was the first reporter the Times employed three decades ago specifically to cover the Supreme Court. I agreed with one decision and disagreed with the other, but both had improbable words and thoughts.

The decision I agreed with was Boumediene et al. v. Bush. It said, in a slim majority of 5-4, that even those held as “enemy combatants” in Guantanamo Bay, Cuba, have the right to have the reasons for their imprisonment explained.

“We hold these petitioners do have the habeas corpus privilege,” Justice Anthony Kennedy, delivering the opinion of the court, wrote. “Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore Section 7 of the Military Commissions Act of 2006 (MCA) operates as an unconstitutional suspension of the writ.”

What Congress did with those laws, DTA and MCA, was puerile. It behaved like a puppy running with, at times delighting in overtaking, its boy master huffing and puffing on his bicycle: President George W. Bush. Reading the passages from DTA and MTA quoted in the decision alone is unsettling. Congress, which includes a Senate that styles itself “the world’s greatest deliberative body,” went to great lengths in stripping the arbitrarily caught and jailed “enemy combatants” of all legal safeguards, excluding certain courts from the process. The legalistic inanities piled up in those laws are sickening.

There is, yes, a great deal of arcane debate on “original intent” and such, and each of the 10 amendments that constitute the Bill of Rights continues to be subjected to a wide range of interpretations.

Still, Article 1, Section 9, Clause 3 of the Constitution seems perfectly clear on the central question of this case: “The Privilege of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Yet Chief Justice Roberts, in his dissent, blithely asserted that the U.S. laws so far represented “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”

Truly? As Justice David Souter made the point of saying in his concurring opinion, hadn’t four years passed since another Supreme Court decision “put everyone on notice that habeas process was available to Guantanamo prisoners,” and six years “since some of these prisoners were captured and incarcerated?” Does Roberts really believe imprisoning people for years without explaining why, except labeling them “enemy combatants,” is “the most generous set of procedural protections?”

The decision I disagreed with was District of Columbia v. Heller. The Second Amendment of the U.S. Constitution says, in full: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Any disinterested third party, without any knowledge of legal history in the United States, will assume that the article has to do with the militia, as the U.S. Supreme Court, though hardly a disinterested party, once did.

“With obvious purpose to assure the continuation and render possible the effectiveness of such forces (i.e., the Militia),” United States v. Miller, in 1939, said, “the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” It was an 8-0 decision. Justice William O. Douglas, who had come to the bench earlier that year, for some reason abstained.

It was the interpretation contained in this decision that two recent solicitors general under conservative administrations, Charles Fried, under President Ronald Reagan, and Kenneth Starr, under the current president’s father, followed.

In case law tradition there is something called stare decisis, the policy of following important precedents. Yet Heller, in another slim 5-4 majority, decided that it guaranteed the right for individual citizens to own and carry guns. What’s unsettling about the decision is that Justice Antonin Scalia, who wrote it, showed himself to remain a boy captive of Hollywood movies.

“There are many reasons that a citizen may prefer a handgun for home defense,” Scalia observed even as he studded his opinion with the term “self-defense” with excessive generosity. “It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police.”

No wonder Arthur Kellermann, professor of emergency medicine and public health at Emory University, couldn’t help hitting the keyboard to write a riposte: “Guns for Safety? Dream On, Scalia” (The Washington Post, June 29).

Ah, yes. In case you are impressed by Scalia’s seemingly erudite parsing of the Second Amendment and citation of historical interpretations and commentaries, you should go on to read Justice John Paul Stevens’ dissent. Stevens rebuts Scalia point by point, with precision, to reach an entirely different conclusion. He says, at one point, that Scalia’s reasoning “borders on the risible.”

Hiroaki Sato is a translator and essayist.