What's the most significant aspect of the Supreme Court's decision in Boumediene ? It was the fact that four justices voted against the Court's ruling. Four justices!! One would think that there should be a hefty majority (and even unanimity) to take constitutionally guaranteed safeguards seriously. And to take seriously the responsibility of the Court to enforce them.
But four justices--one short of a majority--actually voted to deny rights which Americans, our Constitution, and the Court have long believed to be fundamental. The right to know why you are being detained by the government. The right to know the charges against you. The right to know the basis for those charges. The right to challenge those charges. The right to a hearing. The right to legal representation--i.e., someone who knows the law, including these constitutional safeguards. The right to come before a judge, a neutral magistrate who would determine whether there actually is a basis for your detention and the charges against you. These are safeguards which this nation has long decided are essential. These are basic inalienable rights to which individuals are entitled.
Only when the government is unable to function as it does in peacetime, because of an invasion or insurrection or some other drastic condition akin to that; only when the courts are unable to function because of such conditions--these are the only exceptions to those constitutionally guaranteed rights. And the Supreme Court's highest, most critical role is to insure that those guarantees are honored and enforced. That's the role of all nine justices; not a bare 5 - 4 majority of them.
The Court's purpose is not to be a rubber stamp for the President or any other government official. The Court's purpose is not to blink when the President or some other official decides to suspend constitutional rights. The Court's purpose is not to give mere lip service to Constitutional rights whenever the Chief Executive or other official would prefer that it did just that. The Court's purpose is not to blindly accept the President's or some other official's unproven designation of individuals as terrorists or enemy combatants or some other equally evil categorization.
No, the Court's purpose is not to be a pawn of the head of state as the courts are in totalitarian states. We as a nation condemn such tyrannical governments and we are proud that we in this country are different. Yes, we stand up to our government when it disregards our Constitution. Our courts, and especially our highest court, do that. Yes, we are different, just as we were different--through our Supreme Court--in Boumediene. But we were different by a bare majority. Different despite the votes and protestations of FOUR justices in dissent.
There is reason to celebrate the Court's latest decision to reject the President's entirely un-American disregard of basic constitutional safeguards for the Guantanamo detainees. But there is also much reason to pause and consider that the current Supreme Court has apparently become so unsympathetic to fundamental constitutional protections, and so deferential to the President, that this seemingly easy decision in Boumediene was so deeply divided. That the decision rested on one swing vote separating the majority and the dissent. That four justices voted simply to give the President what he wanted. That four justices found no problem in the wholesale denial of constitutional rights based solely on the President's unchallenged classification of individuals. There is at least as much to be concerned about in Boumediene--about the ideological and jurisprudential composition of the current Court--as there is to celebrate.
Additional commentary on the Boumediene decision and what it says about the justices and the Court is forthcoming in posts on the New York Court Watcher blog.