Dig in Deep

Several Supreme Court decisions came down in the last couple of days. As is the case with many Supreme Court decisions, you have the conservative wing (Roberts, Scalia, Thomas, and Alito) opposite the liberal wing (Stevens, Souter, Ginsburg, and Breyer). Therefore, Justice Kennedy seems to hold the key to what the court will decide, and he did in each of these cases.

District of Columbia v Heller – The Supreme Court finally analyzed whether or not the “right to keep and bear arms” applies to the government or to individuals. Of course, no other right in the Bill of Rights was applied to the government. The Bill of Rights essentially either places restrictions on government by securing to rights to individuals. Liberals have been arguing for years that the “right to keep and bear arms” wasn’t on par with freedom of speech, press, or religion. The conservative wing of the court was joined by Justice Kennedy to provide a sensible, plain interpretation of the 2nd amendment.

Kennedy v Louisiana – The Supreme Court decided that states cannot provide the death penalty as an option for punishment of those convicted of child rape, saying that this violates the “cruel and unusual punishment” clause. Look, either the death penalty is cruel and unusual or it isn’t. The Supreme Court has repeatedly upheld the death penalty (even as recently as two months ago!), but it seems like the court (at least the liberal wing of it) wants to micromanage exactly how it can be used. Justice Kennedy joined the liberal wing of the court.

Boumediene v Bush – The Supreme Court said “just kidding” (according to Scalia’s dissent) and required the executive branch to grant all detainees at Guantanamo Bay full habeas corpus rights. (Previously, the court instructed Congress to outline a process for the military to apply to consider a detainee’s request for release, which was passed as the Military Commissions Act of 2006. This ruling basically makes that act of Congress worthless.) Essentially, the judicial branch is now determining how the executive branch should wage war, including what rights it must grant upon enemy combatants captured in the field of war. Judicial activism at it’s finest. Justice Kennedy again joined the liberal wing of the court.

The point isn’t whether you personally agree with the liberal or conservative view of any of these decisions. The question is whether the decision was based on a principle of the separation of powers, and whether a right is explicitly defined by the Constitution or not.

For instance, the “right to keep and bear arms” is explicitly in the 2nd amendment, and residents of Washington, DC have been denied that right for some time. The liberal wing of the court wanted to continue to deny them of that right. The conservative wing of the court sees that the 2nd amendment was passed by legislative and democratic processes, and that it is outside of the government’s power to completely deny them a right specifically guaranteed to them.

In terms of capital punishment, a case could be made that the death penalty is “cruel and unusual” – however, the court has repeatedly upheld this as a form of punishment. In what circumstances a punishment should be applied is open to interpretation, but it is exactly this kind of interpretation that was destined for legislatures to debate through democratic processes. Instead, the liberal wing of the court likes to look for “evolving standards,” “national consensus,” and making their own decisions about what is an acceptable “proportional punishment.” These types of decisions were never meant to be decided by unaccountable judges, only by elected officials.

With regards to enemy combatants, the power to wage war is vested in one individual, the commander-in-chief. Congress declares war, but the president wages it. And the president is accountable, as an elected official. As the Supreme Court enters into the issue, our ability to wage war must now be held against standards set by an unaccountable, unelected branch of government. Congress is given the power to set the jurisdiction of the courts, which is what it did in the Military Commissions Act of 2006. But for some reason the Supreme Court can just decide that this law is worthless, and instead of allowing the president to wage a war that was declared by the Congress, it has stepped in and declared that enemy combatants have the same rights as citizens under the Constitution (at least with respect to habeas corpus).

The liberal wing of the court likes to accomplish by judicial fiat what cannot be accomplished through legislative means. Protecting judges from political pressure is not supposed to be a blank check to enacting whatever changes they desire. But in a world where the Supreme Court is the most politically active and most politically powerful institution in the land, we should not be surprised that nominations and confirmation hearings are as politically charged as they have become since the Democrats made a mockery of the process with Robert Bork. (The slanderous accusations made by Ted Kennedy led to Bork’s defeat, and to today’s situation of Justice Kennedy as the swing vote.)

Conservatives desire justices who read the laws, interpret, and apply them. Liberals desire justices who will continue to uphold the court’s liberally activist past, while forging ahead into new frontiers of liberal activism impossible to pass legislatively.

All of this becomes extremely important when deciding who to vote for this November for president.

UPDATE: Larrey Anderson dealt with this same topic in Justice Anthony Kennedy and Our Schizophrenic Supreme Court, and summed the problem up well: “Your personal right to firearms was one vote away from being thrown on the ash heap of history. And it still is. Cities, like New York, with strict gun control laws, will be sued in federal court using the holding from Heller. Justice Kennedy could change his mind tomorrow.” Ann Coulter also handled this topic mightily in last week’s column, Justice Kennedy: American Idle.