Ignorance of the Law
How journalists help politicize the Supreme Court.

The American Spectator, July/August 2007

In June 2006, when the U.S. Supreme Court invalidated President Bush's system of military commissions to try war-crimes defendants at Guantanamo Bay, New York Times Supreme Court reporter Linda Greenhouse doffed her cloak of objectivity and waxed ecstatic:

The decision was such a sweeping and categorical defeat for the administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantanamo detainees almost speechless with surprise and delight, using words like "fantastic," "amazing" and "remarkable." . . .

The courtroom was, surprisingly, not full, but among those in attendance there was no doubt they were witnessing a historic event, a defining moment in the ever-shifting balance of power among branches of government that ranked with the court's order to President Richard M. Nixon in 1974 to turn over the Watergate tapes. . . .

In the courtroom on Thursday, the chief justice sat silently in his center chair as Justice Stevens, sitting to his immediate right as the senior associate justice, read from the majority opinion. It made for a striking tableau on the final day of the first term of the Roberts court: the young chief justice, observing his work of just a year earlier taken apart point by point by the tenacious 86-year-old Justice Stevens, winner of a Bronze Star for his service as a Navy officer in World War II.

In truth, the decision Hamdan v. Rumsfeld was a very narrow one. It would have been a "sweeping and categorical defeat for the administration" if, say, the justices had adopted the radical position of Greenhouse's editorial-page colleagues, that Guantanamo detainees are entitled to be released or charged in a civilian court-rights legitimate prisoners of war do not enjoy. They did nothing of the sort.

If you've read Greenhouse's account, you may be surprised to learn that the court has never, in Hamdan or any other case, held that alien enemy combatants have any rights under the U.S. Constitution. What the court ruled in Hamdan was merely this:

• The Detainee Treatment Act of 2005, which stripped federal courts of the jurisdiction to hear detainees' petitions under a habeas corpus statute, did not apply to petitions filed before the 2005 law was passed.

• The Geneva Conventions afford some protection to unlawful enemy combatants who are not waging war on behalf of a state. The only specific protection the court extended is the right to have war-crimes charges adjudicated in a "regularly constituted court." Because Congress had not passed a law expressly creating the military commissions, in the view of the court they did not qualify.

The justices were in effect inviting Congress to remedy these legal problems, and it did so in November by passing the Military Commissions Act. In March, an appellate court upheld the habeas corpus provision of the act, and the following month the Supreme Court refused to hear an appeal, allowing that provision to stand. Assuming the military commissions are upheld as well, the "sweeping and categorical defeat for the administration" will have been nullified by a simple act of Congress.

Why did Greenhouse portray this ruling as so much more sweeping than it actually was? Probably because she viewed it foremost through a political lens rather than a legal one. The main opinion was, after all, written by Justice John Paul Stevens, one of the court's "liberals." The other three "liberal" justices-David Souter, Ruth Bader Ginsburg, and Stephen Breyer- joined Stevens's opinion in full, and "swing" justice Anthony Kennedy joined it in part. The "conservatives"- Antonin Scalia, Clarence Thomas, and Samuel Alito-dissented. (Chief Justice John Roberts recused himself because he had written the appellate decision the court overturned.)

The assumption that the court is divided into "ideological" blocs is deeply rooted in American journalism. Consider this gem of legal analysis, from a May 2007 Associated Press dispatch on Justice Alito:

Alito has voted with Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas in every case in which the court has been ideologically divided.
Actually, at the time the AP story was published, Alito had participated in 15 cases in which he was in disagreement with Roberts, Scalia, or Thomas, including five in which he was on one side and all three of them were on the other.

Careful readers will have noted that the AP qualified its statement: It said Alito voted with Roberts, Scalia, and Thomas when the court was "ideologically" divided. But how do we know when the court's division is "ideological"? The AP seems to be suggesting that Alito is a "conservative" because there has been no case in which he and the four "liberal" justices voted one way and the three "conservative" justices voted the other. (Zuni Public School District No. 89 v. Department of Education, a case involving federal school funding, came close, putting Alito in the majority with Stevens, Kennedy, Ginsburg, and Breyer; but Souter dissented.)

But wait. Consider one of the most politically charged cases of the current Supreme Court term, Gonzales v. Carhart, in which the court upheld the Partial-Birth Abortion Ban Act of 2003. Although this is the only abortion case in which Justice Alito has ruled, the AP describes him as "a reliable vote in favor of . . . restrictions on abortion." In truth, Alito, along with Roberts, merely joined the opinion of Justice Anthony Kennedy, who assuredly is not a reliable vote in favor of restrictions on abortion. Neither Roberts nor Alito signed on to Thomas's concurrence (joined by Scalia) rejecting the entirety of the court's pro-abortion jurisprudence.

Which raises another question: Why is Roberts, who joined the court only a few months before Alito, assumed to be a "conservative" justice? There have been five cases in which Roberts and Alito were in the majority and Scalia and Thomas dissented. In two of those cases, all four "liberal" justices (and Kennedy) were in the majority along with Roberts and Alito. Couldn't those be "ideological" cases in which Roberts and Alito both swung to the "liberal" side?

The AP seems to see "ideological" division when the court splits over politically contentious subjects. In addition to abortion, the May story characterizes Alito as "a reliable vote in favor of the death penalty [and] expanded police powers." It also cites his dissent in a case involving global warming. What the wire service implies is that the justices' opinions on these topics are driven by political ideology rather than the legal merits.

This may be true, but if so it is a scandal, for the judiciary is supposed to be above politics. By describing judicial actions in lazy political shorthand rather than delving into their legal merits or lack thereof, journalists who are ignorant of the law help to encourage the politicization of the Supreme Court.

Next article: 'It Didn't Happen' (7/26/07)

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