Monday, July 12, 2004

LawBlogs help me see more in Supreme Court writings The law blogs are a pot of gold in the blogsphere. I have really enjoyed their work and before blogs would have never been privy to aid in understanding the workings of the Supreme Court. Before law blogs my best illumination was from NPR's coverage which never would catch and explain so much of the rich context that is found in these writings. Supreme Court Sends Rehnquist to the Remainder Bin. I was out of the country when the Supreme Court decided the Guantanamo, Hamdi, and Padilla cases, so you were spared my musings. I have every confidence that the blogosphere's experts said all there was to say about the decisions, and then some. Indeed, others may already have said what I'll say here. But I thought I'd mention it anyway. One striking feature of the decisions was the Court's repudiation of the basic thesis of the Chief Justice's 1998 book on civil liberties in wartime, All the Laws But One. After reviewing certain episodes from the Civil War, World War I, and World War II, Rehnquist argued there that in times of crisis, the balance between liberty and security inevitably shifts toward security, and (more to the point) that judges do not and should not interfere with wartime actions of the Commander-in-Chief. Applying the Latin maxim "inter arma silent leges," Rehnquist argued that in times of war the laws will inevitably be silent—and that this is probably how it ought to be. Linda Greenhouse noted a week ago that given Rehnquist's interest in the issue, one might have expected him to write an opinion in the recently decided cases, and that his silence in the cases was therefore especially notable. That's true, but I think we can say more. Whatever the Guantanamo and Hamdi cases might mean at the micro level, it's impossible to view them at the macro level as anything but a repudiation of Rehnquist's thesis. Linda Greenhouse was Justice Scalia, in fact, went out of his way (in his Hamdi dissent, formally joined only by Justice Stevens but on a point with which many others on the Court seemingly agree) to bury the thesis of Rehnquist's book. He had the (perhaps uncharacteristic) charity not to cite the book directly, but here's what he said: Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis–that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. In a review of Rehnquist's book (.pdf file) that I published in the University of Chicago Law Review several years ago, I worried that the book might take on the status of quasi-precedent because it was from the pen of the Chief Justice. I'm very happy to see that, at least in the context of the post-9/11 world, I have turned out to be wrong. [IsThatLegal?] 1:07:57 PM    comment []

Nigerian scammer gets scammed and there are even photo's 11:43:11 AM    comment []