This week the U.S. Supreme Court upheld the Constitution of the United States and restored (somewhat) the principle of habeas corpus which has been a central part of the British legal tradition, in some form or other for more than 800 years and which was scrapped by George W. Bush with the support of the Republican-majority legislature, on the counsel of the sleazy Alberto Gonzalez and probably with the advice of the evil John Yoo. Habeas corpus means that an accused has a right to challenge the legality of their detention in a court. “The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.”

And now the centrepiece of American law has been restored – for the time being:

In a 5-4 ruling that overturned the decision of a lower court, the Supreme Court effectively said the government’s system for trying so-called “enemy combatants” under military commissions does not provide adequate legal protections to them.

In its 70-page decision, the Court noted: “Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to separation of powers. . . “

Vincent Warren, the executive director of the New York-based Center for Constitutional Rights, called today’s ruling a “landmark win” for Guantanamo detainees.

“The Supreme Court has finally brought an end to one of our nation’s most egregious injustices,” said Mr Warren in a statement. “It has finally given the men held at Guantánamo the justice that they have long deserved. By granting the writ of habeas corpus, the Supreme Court recognises a rule of law established hundreds of years ago and essential to American jurisprudence since our nation’s founding. This six-year-long nightmare is a lesson in how fragile our constitutional protections truly are in the hands of an overzealous executive.”

The President said he disagrees.

“We will abide by the court’s decision. That doesn’t mean I have to agree with it.”

This form of words – “that doesn’t mean I have to [x]…” – in a child or an immature person is typical of petulance. It doesn’t necessarily indicate that Bush was doing a childish foot-stamp but the possibility is enhanced by his reported statement that “the White House will study the narrow 5-4 court opinion to see if new legislation is needed.” Or, to put it another way, “I’m going to hold my breath and stamp on the floor until you give me what I want…It was a deeply divided court. And I strongly agree with those who dissented,” he said.

Who would have guessed he’s not only an MBA but a highly skilled lawyer, too, with a deep understanding of the complexities of constitutional law? After all, he is reported to have quite a different opinion of the value of the Constitution:

GOP leaders told Bush that his hardcore push to renew the more onerous provisions of the [Patriot] act could further alienate conservatives still mad at the President from his botched attempt to nominate White House Counsel Harriet Miers to the Supreme Court.

“I don’t give a goddamn,” Bush retorted. “I’m the President and the Commander-in-Chief. Do it my way.”

“Mr. President,” one aide in the meeting said. “There is a valid case that the provisions in this law undermine the Constitution.”

“Stop throwing the Constitution in my face,” Bush screamed back. “It’s just a goddamned piece of paper!”

Scalia
You might think that the task of the judiciary in any country where the judiciary is independent is to carry out the law, or to see that it is carried out; that it is not the judiciary’s job to determine whether it approves of the law in any particular situation; not its task to consider possible consequences of a ruling but to make the ruling on the facts and the law. You might think that it is not the task of the judiciary to act as an arm of the Executive; not its task either to support or oppose the Executive’s, or the parliament‘s, foreign policy, social policy, security policy, military policy, or any other policy. You might think that its job is only to determine how the law ought relevantly to be applied.

If you think so, there are many who would agree with you and many who would disagree with you.

But, according to his outspoken opinion, Justice Antonin Scalia of the Supreme Court would very much agree with you. He is an “originalist“, a “textualist“. He believes that the US Constitution cannot be “interpreted” in light of the conventions of the day or even of legislative history but must be read in accordance with the intended meanings of the original framers. He believes that the Constitution must be read as written, the “plain meaning“, as a reasonable and sufficiently educated person would understand it, without additional interpretation or the complication of modern nuance. He’s the legal version of a religious fundamentalist. He believes the Constitution must be changed only by amendment and not by the courts. He believes this allows for democratic change as opposed to top down rule by judges.

And yet…and yet…his dissenting opinion in the Boumedienne case contradicts all this.

“The nation will live to regret what the Court has done today. [The nation is] at war with radical Islamists. [This ruling] will make the war harder on us [and will] almost certainly cause more Americans to be killed.

This is why we believe he has outed himself as a political jurist for the Republican Party and the Executive and not as a Constitutional purist after all. His opinion hinges on the possible effects of the judgement and not at all on the correctness of the interpretation of the law. Although his public posture is that the contemporary context of a judgment is irrelevant to interpretation of the Constitution, here his opinion (and his dire warnings) is entirely dependent on the contemporary context. It is all about foreign policy, security and military concerns. But they are political – and largely party political – policy considerations. The question before the Court was whether the Constitution itself had been violated, whether people had been denied a right due to them under the Law and the Constitution. For Scalia to suggest that either the letter or the intent of the law may properly and justifiably be set aside on the grounds of political policy, or in the interests of a possible future threat to security, is contrary to his public position and a subversion of the law, especially as he sees it.

You’ve Done It Again…
John McCain, meanwhile, has shown that he has about as much respect as George Bush for the Constitution of his country saying the ruling is “one of the worst decisions in the history of this country”, and dismissing, apparently as irrelevant, “so-called, quote, ‘habeas corpus suits’…”

This kind of internal slapstick struggle that characterises America today, the black-hat ranchers vs the white-hat cowboys, the good guys vs the strong(arm) guys, puritanism vs freedom, humanity vs greed, nurture vs violence, intellect vs ignorance, faith vs evidence, reminds us so strongly of Steve Martin in All Of Me. Jerking, torn, paralysed, unco, conflicted, shouting at himself, confused, aggressive, afraid. Yet somehow charming. And all those of us watching from the stalls want him to solve the problem and get better. Meantime we laugh at his buffoonery and his predicament.

But let us allow the last, and wisest, words to be those of Justice Anthony Kennedy who wrote the majority opinion:

The laws and Constitution are designed to survive, and remain in force, in extraordinary times…

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