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The '08 race and the future of the court

The 2008 presidential campaign is not just about the war in Iraq, or gas prices, or health care, or flag pins. It's also about the future direction of the U.S. Supreme Court, and the challenge of balancing national security conce

The 2008 presidential campaign is not just about the war in Iraq, or gas prices, or health care, or flag pins. It's also about the future direction of the U.S. Supreme Court, and the challenge of balancing national security concerns with fealty to the nation's democratic principles. Even a cursory glance at the yesterday's historic court ruling demonstrates why this is so.

A 5-4 majority declared - for the third time in the last four years - that the Bush regime and its Republican congressional enablers have violated the U.S. Constitution by denying the most basic legal rights to the prisoners detained at Guantanamo, many of whom have been held for as long as six years without any charges being filed against them. What Ronald Reagan appointee Sandra Day O'Connor warned in 2004 ("A state of war is not a blank check for the president") was essentially echoed yesterday by Ronald Reagan appointee Anthony Kennedy ("The laws and Constitution are designed to survive, and remain in force, in extraordinary times").

The big loser yesterday was actually John McCain, one of the prime architects of the 2006 Military Commissions Act, and the prime mover behind the 2005 Detainee Treatment Act, both of which sought to give President Bush's policies a fig leaf of legality. Kennedy, who wrote the majority opinion, pointed out that, in a democracy, national security provisions must be "in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint..." His problem with the McCain provisions is that they constituted arbitrary and unlawful restraint.

Taken together, those two laws made it virtually impossible for the detainees to challenge their incarcerations. They had to appear before special tribunals, without legal representation. They were restrained from challenging much of the evidence against them, and, in many circumstances, denied access to the evidence itself - which, under the provisions, was deemed to be presumptively valid.

Also, the '06 law stripped the U.S. federal courts of the ability to hear any petitions filed by the detainees. That law, enacted by the Republican Congress just prior to its ouster, seemed to particularly rile the high court majority, probably because it violated the fundamental principle of judicial review - as established way back in 1803. Kennedy warned yesterday, "To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, say 'what the law is.'"

One might argue that it is "strict constructionist" thinking to hew to the principle of judicial review established by Chief Justice John Marshall, a contemporary of the Founding Fathers...and to hew to the principle of habeus corpus (the right of a detainee to challenge incarceration), which the Founding Fathers adopted from the 13th-century Magna Carta. Indeed, one of those Founding Fathers was quoted by Kennedy; as Alexander Hamilton wrote, "The practice of arbitrary imprisonments, in all ages, is the favorite and most formidable instruments of tyrrany."

But here's where I'm going with this: three of the five judges who comprised the majority are likely to depart the court during the first term of the next president. John Paul Stevens, who was appointed by Republican Gerald Ford, is 88 years old. Ruth Bader Ginsburg, appointed by Bill Clinton, is 75 and ailing. And David Souter, appointed by the first President Bush, is a relatively spry 68 but reportedly yearning to retire. They have made it possible for the court to impose constitutional constraints on Bush's attempts to expand executive power.

If Obama - who voted against the McCain-sponsored 2006 Military Commissions Act - wins the election, he will likely nominate judges in the mold of those departees. McCain, who was effectively slapped down yesterday for creating what Obama called "a legal black hole," would likely tap jurists who are philosophically in sync with yesterday's minority (John Roberts, Sam Alito, Antonin Scalia, and Clarence Thomas).

Who besides Ralph Nader is still willing to argue that there are no fundamental differences between the two major party candidates? And, this autumn, will Hillary Clinton's female bitter-enders deem the court issue to be less important than whether some talking heads on MSNBC dissed their heroine?


Earlier this morning, I talked politics on Philadelphia's NPR station. Main topic: Who will Obama and McCain choose as running mates? The 50-minute show was hosted by Marty Moss-Coane; my fellow guest was the estimable Susan Milligan of The Boston Globe. The audio is archived here.