Boumediene and the Omnipotent Supreme Court

Almost one month ago the Supreme Court decided what could possibly be a landmark case (Boumediene v. Bush). It remains to be seem just what the specific policy repercussions of this ruling might be. Nevertheless, one thing is certain, and that is this case represents a bold expansion of judicial supremacy over the other two branches of government.

First, whatever negative repercussions do result from this decision, a portion of the blame lies at the feet of the Bush Administration. Had the Bush administration worked jointly with Congress, the Military and the Justice Department in the very beginning to develop guidelines for determining what constitutes an "enemy combatant" and a set of procedures by which these detainees could challenge their detainment in a military tribunal setting (as has been done in the past), the Supreme Court would have been less likely to intervene. It is the appearance of executive overreach that initially brought these issues to the Supreme Court and it is an appearance that could have been avoided had the Bush Administration sought to include the other branches of government (especially congress) from the initial development of the policy. This approach would have required more compromise and more humility than the administration was willing to show at the time, but the Court has since forced the administration into submission and required a drastic compromise with potentially disastrous consequences.

Nevertheless, the most distressing element of Boumediene is the Court's bold attempt to expand it's ever-growing influence over policy and legislation. In previous cases the Supreme Court instructed the administration to work with congress to create guidelines for declaring an alien detained by U.S. Government an enemy combatant. It also instructed the administration to work with congress to develop a system by which enemy combatants could challenge their detention. The Court seemed to suggest that if these two steps were taken, that would resolve the constitutional issues surrounding the detainees located at Guantanamo Bay, Cuba. In previous cases the Supreme Court acted with a reasonable amount of restraint in their decisions, providing guidelines and advice, but allowing the executive and legislative branches enough leeway to craft the policies regarding detainees. (This is precisely the role that the Supreme Court is designed to play in our federal government.) However, in Boumediene the majority set aside its pretense of self-moderation and overrode the policies established by the Government's elected representatives. Such a move by the Court is not, on it's face, bold or overreaching. It is the responsibility of the Court to overturn laws that it finds unconstitutional. But in Boumediene the Court appears to disregard it's prior decisions that allowed policies to be built within the Constitutional guidelines it laid out. Instead, in Boumediene, the majority finds that Guantanamo Bay is in fact sovereign territory of the United States and therefore the individuals held there have Habeas Corpus rights (right to appeal their detention in a federal court). It also indirectly grants individual federal judges the authority to determine the policies and procedures pertaining to the enemy combatants held at Guantanamo Bay.

Evidence of Court's overreach lies in the fact that the determination that Guantanamo Bay is sovereign U.S. territory and therefore Habeas Corpus applies, does not appear in previous decisions. If the court truly believed that the individuals held at Guantanamo Bay should be granted Habeas Corpus why not include such a declaration in previous decisions rather than having the government go through the pain staking process of developing a separate legal system for the detainees. It seems possible that the justices in the majority gave into the temptation to over step their constitutional mandate in order craft a key policy, and in the process, set a new precedent that allows the judiciary unprecedented authority over key military, security, and foreign policy issues.

As stated before, the immediate legal and policy repercussions of Boumediene remain to be seen. However, one consequence that has clearly emerged is a significant shift in the relative authority of our three branches of government. A continued shift in this direction will lead to more power consolidating in the hands unelected, lifetime appointed justices. Certainly not the balance of power envisioned by our Founding Fathers.