Why This Court Keeps Rebuking This President
“The most important thing we do is not doing,” Justice Louis D. Brandeis once said of the Supreme Court’s abiding humility, its overwhelming preference to allow the people, through their elected representatives, to govern themselves.
And never is the court more reluctant to act than when faced with a challenge to the president during wartime. Consider the historical record.
The court has ruled against a president in a time of armed conflict no more than a handful of times, most famously in Youngstown Sheet and Tube v. Sawyer, when it held that Harry S. Truman lacked the constitutional authority to seize the nation’s steel mills to avert a strike during the Korean War. The invocation of two words — military necessity — by a commander in chief was usually all it took to silence a majority of the justices.
So it is extraordinary that during the Bush administration’s seven years, nearly all of them a time of war that began on Sept. 11, 2001, the court has been prompted to push back four times. Last week’s decision in Boumediene v. Bush, in which the court ruled that prisoners at Guantánamo Bay have a right to challenge their detentions in the federal courts, marks only the most recent rebuke.
“When viewed through the lens of history, it’s astounding,” says Neal Katyal, a law professor at Georgetown who argued against the government in one of those cases, Hamdan v. Rumsfeld. So how are we to explain this shift from decades of deference to a willingness to check the president?
Read entire article at NYT
And never is the court more reluctant to act than when faced with a challenge to the president during wartime. Consider the historical record.
The court has ruled against a president in a time of armed conflict no more than a handful of times, most famously in Youngstown Sheet and Tube v. Sawyer, when it held that Harry S. Truman lacked the constitutional authority to seize the nation’s steel mills to avert a strike during the Korean War. The invocation of two words — military necessity — by a commander in chief was usually all it took to silence a majority of the justices.
So it is extraordinary that during the Bush administration’s seven years, nearly all of them a time of war that began on Sept. 11, 2001, the court has been prompted to push back four times. Last week’s decision in Boumediene v. Bush, in which the court ruled that prisoners at Guantánamo Bay have a right to challenge their detentions in the federal courts, marks only the most recent rebuke.
“When viewed through the lens of history, it’s astounding,” says Neal Katyal, a law professor at Georgetown who argued against the government in one of those cases, Hamdan v. Rumsfeld. So how are we to explain this shift from decades of deference to a willingness to check the president?