Judges Who Would Be King

When a federal judge ordered 17 Chinese Uighurs, detained at Guantanamo Bay, released into the United States last October, he took to its logical conclusion the judiciary’s increasingly bold effort to supervise the president and Congress. Justifying his ruling in the face of Congress’ exclusive constitutional power over when, which, and how foreign nationals may enter the United States, Judge Ricardo Urbina reasoned that “our system of checks and balances is designed to preserve the fundamental right of liberty.” He saw his order as necessary to that end. But if he’s right, then the judiciary itself is the unchecked branch of government. And while judges have expanded their power before in our history, never have the claims to supremacy of some of them been so extreme. Judge Urbina’s order, reversed on appeal and the subject of a pending petition for Supreme Court review, is one of an increasing number of rulings that have brought the federal judiciary deep into national-security territory that once was almost entirely reserved to the political branches. Another federal district judge recently ordered the release of Mohammed Jawad, originally detained at Guantanamo Bay for having maimed a U.S. solider in Afghanistan. And other judges have taken similar steps in habeas corpus actions brought by war-on-terror prisoners to obtain their release. These rulings necessarily second-guess presidential decisions about who should be detained as an enemy fighter in wartime. The principle underlying them is summed up in Justice Anthony Kennedy’s oft-quoted statement that to free the president and Congress from judicial supervision would amount to a holding that “the political branches have the power to switch the Constitution on and off at will.” Kennedy made this claim in his 2008 majority opinion in Boumediene v. Bush. That case is the Supreme Court’s most recent war-powers decision and articulated a strikingly expansive view of judicial power. Abandoning settled precedent that denied judicial review to aliens captured and held overseas by American forces, the court ruled that anyone detained in an area sufficiently controlled by the United States (Guantanamo Bay) could seek release through a habeas corpus petition to the federal courts. It reasoned that the absence of judicial review in such cases would amount to a license for the “political branches to govern without legal constraint.” Boumediene’s rationale is equally applicable to geographic areas like Guantanamo or Bagram and to areas of governmental power, such as the conduct of armed conflict, reserved by the Constitution to the political branches. If the absence of judicial review is equivalent to an absence of “legal constraint,” then the courts must be the final arbiters on every question involving an exercise of presidential or congressional power. The problem with this view is obvious. If there is no aspect of government over which the courts do not have the final say, then under the guise of saying “what the law is,” as the 1803 case Marbury v. Madison put it, judges become the little kings they so often remind the president he is not. This is especially the case today because a number of the traditional constraints on judicial power have been severely eroded. First and foremost is the venerable political question doctrine. Under this rule, federal courts have refused to resolve questions involving matters committed by the Constitution to Congress or the president. The doctrine has been applied both out of prudence, because judges are ill-suited to develop and assess the information relevant to formulating foreign and national-security policy, and because the Constitution established a genuine separation of powers among the three branches of government. The conduct of American foreign-policy and military actions overseas is, of course, at the very core of those powers reserved to the

political branches. Second, judicial power has also been constrained by the Constitution’s “case or controversy” requirement, which limits federal court authority to matters involving actual litigants who have a defined interest in some claim that is subject to judicial resolution and remedy. This prerequisite to any federal lawsuit is generally called “standing.” Over the past 60 years, however, both the requirement that a litigant must have standing and the political question doctrine have lost much of their force. Like pornography, judges know standing when they see it, and it is not much of a “check” on judicial authority. With regard to the political question doctrine, in Boumediene, Kennedy actually suggested that the Supreme Court’s historic refusal to second-guess the president’s conduct of hostilities had more to do with the “limited duration” of the nation’s previous wars than the Constitution’s clear disposition of war powers to the executive and legislative branches. In a dothprotest-too-much moment, the court said that it may no longer enjoy the “luxury” of not defining “the outer boundaries of war powers” because future conflicts, and particularly the war on terror, may be of a less determinate nature. A number of lower courts followed Boumediene by embarking on this very task. In case after case involving habeas corpus appeals from Guantanamo, federal judges are considering whether foreign nationals captured abroad are properly held as wartime detainees. And, not surprisingly, when the ordinary standards of proof in civilian proceedings are applied to these cases, judges increasingly find that the government has insufficient evidence to keep the petitioners prisoner. As Judge Richard Leon explained in the Boumediene case after the Supreme Court let it go forward, although the classified government information he reviewed was “undoubtedly sufficient for the intelligence purposes for which it was prepared”— conceivably sufficient for the CIA or another agency to seize, or even attack and kill, the detainees—it was “not sufficient for the purposes for which a habeas court must now evaluate it.” This is not surprising, since the collection of evidence in our civilian system emphatically does not involve the intricacies and inevitable speculations of foreign or military intelligence gathering, let alone actual battlefield conditions. The Constitution’s Framers did not design the judiciary as the “first among equals” in our tripartite system, ultimately responsible for determining whether Congress or the president have properly exercised their own discretionary functions. And yet, since the republic’s foundation, the Supreme Court has at times arrogated to itself new authority. The first such judicial expansion culminated with Chief Justice Roger Taney’s ill-judged effort to end the nation’s argument over slavery in the 1857 Dred Scott v. Sanford. The result, of course, was not acceptance of the court’s resolution of the slavery question, as Taney expected, but a four-year civil war. The second phase of judicial expansion occurred decades later when the Supreme Court turned its attention to preserving a laissez-faire economy, largely free from governmental regulation. It ended when the court crossed President Franklin Roosevelt, invalidating important aspects of his New Deal—and then backed down, after FDR threatened it with his court-packing plan. The present expansion of judicial power began after World War II, when the Supreme Court found a new meteor in the vindication of individual rights and liberties. In a series of epic decisions, the Warren Court outlawed segregation, expanded free speech and the rights of criminal defendants, and created a right to privacy that is not found in the text of the Constitution. Some of these cases certainly were

correctly decided—the Constitution’s text, for example, never supported a rule of “separate but equal” segregation. However, the courts quickly moved beyond saying what the law is, in the Marbury court’s phrase, to devising elaborate enforcement schemes that brought judges, among other things, into the business of supervising school districts and effectively determining how federal and state prisons must be designed. It was, of course, this period in the 1960s and 1970s that galvanized the left in its support for an expansive role for the judiciary, and that led to its prevailing notion that the courts are the Constitution’s only reliable guardians. But by moving so aggressively into the national-security area, the current Supreme Court has hit upon a recipe for true empire building. If there is no exercise of congressional or presidential power that is not subject to the judiciary’s review and correction, then the Constitution does indeed have an on/off switch—and it is controlled by the judges. That should be every bit as alarming as putting such a switch in presidential or congressional hands. What will check the judiciary’s contemporary expansion? We can hope that the other two branches will realize that, however expedient it is to have the courts decide politically difficult issues, in time judicial supervision will make it impossible for them to perform their own constitutional duties—such as protecting the population from future attacks. Similarly, the courts may discover that ultimate power carries ultimate responsibility. That should be a daunting prospect for a branch that lacks the legitimate power of the purse or sword. In the meantime, anyone who cares about limited government, and the individual liberty it is designed to protect, should ask themselves who now checks and balances the judges.