The Supreme Court: Missing in Action

...Consider the example of the United Kingdom...

...The Supreme Court is not always antidemocratic, because its role is not limited to overturning what other branches of government do...

...By contrast, when the president or Congress does something Americans don't like, their support drops substantially...

...But when either the president or Congress does nothing, people still hold them accountable...

...This was Blair's first major defeat in the House of Commons during his time as prime minister...

...For most of its history, the Supreme Court did not have the same freedom to decide what to do...

...But it is also undesirable to live in a system in which one branch of government almost never DISSENT / Spring 2008 n 71 SUPREME COURT weighs in on the major issues of the day and that is what we have had in the recent past...

...It is and has been for some time the most popular branch of American government...

...What the Supreme Court Has Done In 2004, the Supreme Court decided three cases related to the war on terror—Rasul v. Bush, Padilla v. Rumsfeld, and Hamdi v. Rumsfeld...

...The Results of Inaction What is the problem with this approach...

...In 2006, even before Charkaoui, the national Canadian election featured questions about the earlier decisions...

...Again, the cases will be about structural constitutional issues—about whether Congress can deprive federal courts of the power to hear certain types of cases—but not about what rights are at stake once those parties make their way into court.* In Padilla v. Rumsfeld, also decided in 2004, the Supreme Court addressed the case of an American citizen captured at Chicago's O'Hare International Airport and accused of plotting to commit terrorist acts on American soil...

...Years from now, we may see 2008 as the year during which the Supreme Court finally intervened to address many of the crucial civil liberties issues presented by the War on Terror...

...High Court in a Healthy Democracy There are other, larger reasons to be concerned about the Supreme Court shirking its responsibilities in the war on terror, extending beyond the Court's minimal role in this public debate...

...By contrast, the 2004 elections in the United States featured no discussions of U.S...

...The legislation the Law Lords found to be problematic in December 2004 quickly became the subject of major political discussions...

...But at no time has the Supreme Court been an active participant in constitutional debates about the post-9/11 world...

...If the Supreme Court had intervened, things could have been different, and we would all be the better for it...

...Rarely has Congress reacted so quickly to a Supreme Court decision as it did after Hamdan...

...Congress also overwhelmingly passed the Military Commissions Act (MCA) of 2006, which prevented aliens detained by the government from challenging their detention— and barred them from looking to the Geneva Conventions as a source of a legal claim...

...In the narrow, elite world within which the justices operate, these can be effective means of critique and constraint...

...Law professors and other judges and lawyers might 72 n DISSENT / Spring 2008 write articles in the legal journals about what a poor decision the Court has made...

...The Law Lords decided that individuals could be detained at length, as Parliament desired, but that detainees needed to be afforded additional protections—and these lengthy detentions had to apply to citizens and noncitizens alike...

...A decision to do nothing is a decision that remains largely free from sanction and accountability...

...In so doing, the Court changed the political dynamics of the country, in effect focusing the public eye on Congress to see if it was going to ratify the commissions as the justices seemed to say it could do...

...The case was decided on June 29, 2006...

...AMERICANS BECOME more aware of the Court the more it involves itself in controversies...

...Whenever the Court has had a chance to discuss those kinds of questions, it has avoided them...

...In both cases, the justices discussed rights issues at length and so injected these issues into the public debate...

...This past October, the House of Lords again intervened into these debates, noting the problems with substantial parts of the law passed as a result of its earlier decision...

...Emboldened by Court decisions on these issues, a vocal Canadian political movement on the left has risen to challenge rights-restrictive policies of the government...

...This is because other actors (members of Congress, lawyers, newspaper editorial writers, college teachers, and many others) can now recite the Court's language in support of their cause...

...Although many of the Canadian decisions were not as protective of rights as one might wish, and there are still civil liberties violations by Canadian authorities, the Canadian Parliament has discussed rights issues in the light of the Court decisions...

...Again, its arguments addressed many of the catastrophic consequences for individual rights of current British modes of detention, and generated a political discussion about these matters...

...But that is not true of judicial review in the way I have described it, where the Court plays a greater role in shaping and influencing debate than in dictating outcomes...

...In June of this year, the Court will likely decide whether those being held in Guantanamo have the constitutional right to challenge their detention in American courts...

...For proof of this, we need only look at the experiences of Canada and the United Kingdom...

...The justices said that secret evidence could not be used against Charkaoui, that he could not be detained indefinitely, and that he needed to be given a chance to argue against his detention...

...Congress must meet with only a minimal degree of frequency...

...The Court has talked about what the institutions of our government can do to one another, but not what those institutions can do to people...

...All it decided was that if the government wants to charge Hamdan in the way that it did, it must first make sure that both the president and Congress have agreed...

...Second, when the Supreme Court presents this perspective, people listen...

...If the Justices had drawn attention to violations of individual rights, most of America would have listened and possibly agreed...

...If the Court had decided cases in favor of rights before the tide had turned against the Bush administration, its decisions might have elicited formulaic and near-obligatory compliance...

...So far, when the same issues have arisen in American courts, the courts have decided not to address them...

...First, the Court's decisions could be relevant even if they did not reverse Bush administration policies...

...As recently as twenty years ago, they were deciding more than double that number...

...And, in important ways, their politics have been different as a result...

...Attorneys for those being detained at Guantanamo could have made appearances on CNN and (even) Fox News reciting the evils DISSENT / Spring 2008 • 69 SUPREME COURT of torture as described by the Court...

...A month after deciding this case, the Court agreed to hear a second case brought by Charkaoui (by contrast, our Supreme Court has declined to hear any further challenges by Hamdan) related to the destruction of evidence...

...In 1988, Congress passed another law giving the Court even more control over what cases it wanted to hear...

...On all of these occasions, in part because there were no Supreme Court decisions addressing the critical issues, there was very little discussion of rights...

...What good does it do to wait until the matter has already been resolved in the public debate...

...This is because of what political scientists call "positivity bias...

...Members of Congress did not rise in the House and Senate, in the debate about the MCA, and quote what the Supreme Court had said about how a military commission would have to be fair and just—because the Supreme Court had very little to say about this...

...By telling Congress that it could or should act, the Court energized certain political actors—but without providing decisions (or dissents) about SUPREME COURT the rights at stake that might have influenced or constrained their activity...

...Concerns about rights could have been presented far more effectively than if, as actually happened, the Court refused to speak to these issues...

...And when other parties before and after Rasul petitioned the Court to hear cases that presented those more rights-focused issues, it declined to do so...

...Recall that the Patriot Act was passed in 2001 by a vote of ninety-eight to one in the Senate, with very little debate...

...In the first of these, the Court decided that a decades-old statute about when government detainees could apply for habeas corpus did apply to those being held in Guantanamo...

...Supreme Court decisions about rights...

...Suddenly, civil libertarian dissenters within the Labour Party had new political power and political cover, and there was a renewed debate within the party and the country about civil liberties—which ultimately resulted in the decision by members of Blair's Labour Party to block his 2005 proposal to hold detainees for up to ninety days without charge...

...If the Supreme Court issues a decisive ruling after a matter has already been settled, it just ratifies rather than affects our debates...

...And, when members of Congress did try to address the rights consequences of the DTA and MCA, they did so without the political cover of the Court...

...The answer, simply put, is that it legitimates and even catalyzes political activity by Congress and the president, but it does so without including in this political activity the critically influential background voice of the Supreme Court on issues related to individual rights...

...The same is true of two cases that the Supreme Court will decide this year about two American citizens being detained in Iraq: The Court will address whether they can file a petition in an American court, but not address the merits of their petitions...

...But these systems of accountability do not work as well when, as has been the case since September 11, the Court decides not to hear cases...

...The Court's silence on the major rights issues of the day and its focus on structural issues should be a source of concern for all those interested in protecting American freedom...

...If the Supreme Court is involved before matters are already settled, it becomes relevant—and, as we have seen, does not become either tyrannical or illegitimate because of its relevance...

...Sometimes, the Court is just a megaphone, projecting certain critical considerations into the public sphere...

...But to date these decisions have addressed structural constitutional issues, such as the separation of powers or the jurisdiction of federal courts...

...And law professors cannot make their careers by writing about what the Court has not done...

...Our Constitution allows the three branches of government to set their own agenda in many ways...

...The president has to advise Congress on some matters, which has led to the annual State of the Union speech...

...As a result, too many have been tortured, held without hearings, and had their privacy violated—and fighting those practices now is even more of an uphill battle than it needs to be...

...When it makes a decision that people do not like, there is usually a response...

...Many on the left, including Mark Tushnet and Jeremy Waldron in the pages of Dissent (Spring and Summer 2005), worry about the Court's DISSENT / Spring 2008 n 73 SUPREME COURT intervening to decide these controversial issues...

...Although courts in both countries have been deferential to the authorities, they have still been engaged in discussions about rights issues in a way our own Court has not been...

...DAVID FONTANA is associate professor of law at George Washington University Law School...

...And when Padilla brought petitions to the Court focused more directly on individual rights claims, the Justices decided not to hear his case...

...Although the Court did address some of the procedural problems with the military commissions and the possible violation of Hamdan's rights, it did not make any decision about what rights the Constitution guarantees...

...The Court, then, is accountable for what it does...

...As it is, our politics has been devoid of a voice—and an authoritative voice—on individual rights...

...While the silence of the Court on individual rights has been unhelpful, its decision to focus on structure without a background discussion of rights has actually been harmful...

...On the major constitutional issues of the recent past—Iraq, torture, wiretapping without warrants, the Patriot Act, and Guantanamo— the Court has decided cases related to just one of these...

...Only very rarely—and almost never in a full story—will newspapers cover a decision by the Court not to hear a case...

...By focusing on structural issues, the Court has provided guidelines limiting the authority of the different branches of government in relation to one another, but it has provided no guidelines on what the three branches of government can and cannot do when they act in concert...

...But, even if it does that, it will be too little, too late...

...Looking at the past several years, we see a theme—or the absence of a theme: the Court has ruled on structural issues, but there have been no rulings on torture or wiretapping or the Patriot Act or on any other issues related to individual rights...

...For the first several years, a very aggressive president acted alone, without Congress or the Supreme Court...

...The Court has two main powers: one has to do with law and compulsion, the other has to do with political debate...

...The Bush administration declared Jose Padilla an "enemy combatant," thereby detaining him and forbidding him most access to legal representation, but not charging him with any crime...

...The New York Times might publish a story skeptical of a particular decision...

...Members of Congress do not criticize the Court for declining jurisdiction...

...The Court can legally compel other branches of government to do something...

...The role for the Court, then, is to confirm a public consensus, not to jump in front of it...

...As in Canada, the British Court proclaimed the importance of rights, but permitted Parliament to respond...

...Even beyond the War on Terror, the important issues that the Court has not addressed are legion: the aftermath of Hurricane Katrina, tax cuts, health care, education policy, and so on...

...If members of Congress had been able to go to the floor to denounce these statutes and to quote recent Court decisions about what was at stake, they might have escaped being branded as "soft" on security, wimpish in their defense of American lives...

...The effects of this decision were instant...

...The Court pointed its collective finger at Congress and said that it could act to create military commissions...

...In 2004, the SUPREME COURT Court decided that certain investigative hearings were procedurally defective: the justices held that the hearings were not as open to the public and as fair as constitutional norms required— though they also said that the hearings could go forward in a modified form...

...There is considerable evidence suggesting a strong presumption in American public opinion that the Court's decisions should be widely accepted and then complied with by the other branches of government...

...The Supreme Court's discussion of constitutional questions is particularly important for two reasons...

...The cumulative effect of these decisions has changed Canadian politics...

...Both countries have political and legal traditions similar to the United States, and the Supreme Court in Canada and the House of Lords in the United Kingdom, like our Court, have effective control over the cases that they hear and decide...

...Harry Truman won a presidential election in 1948 by running against a "do-nothing Congress...

...A similar story can be told about the United Kingdom...

...Hamdan catalyzed American politics, serving as a sort of lightning bolt to generate political activity...

...On February 22, 2005, the Blair Government introduced legislation to modify the old bill, but the new legislation was still found to be problematic...

...Congress has considered thousands of bills over the years related to cases in which, so some members of Congress thought, the justices were going to make a bad decision or had made a bad decision...

...Second, Court decisions do not necessarily create the backlash that many on the left fear...

...some members talked of impeachment...

...Many members of former prime minister Tony Blair's Labour Party were unwilling to criticize his harsh anti-terrorism policies for several years after September 11...

...Even the potentially significant and related cases that the Court will decide by this June, Boumediene v. Bush and Al Odah v. United States, will also only address the right to file claims in American courts—this time not asking whether Congress itself has authorized them to file lawsuits, but whether the Constitution forbids Congress SUPREME COURT from preventing them from filing lawsuits...

...Rasul, however, did not raise questions about whether those being held in Guantanamo should be there or about how they were being treated there...

...For most of the time since September 11, few major political figures have been willing to stand up and speak in support of these rights...

...The left should support democracy, they argue, and judicial review is undemocratic...

...Finally, in a landmark decision issued in February 2007, the Canadian Court decided in Charkaoui v. Canada a number of issues related to the constitutionality of the detention of a Moroccan-born permanent resident of Canada...

...In 2006, the Supreme Court addressed the constitutionality of President Bush's executive order establishing military commissions, which were to be used to try Salid Ahmed Hamdan, allegedly Osama bin Laden's driver...

...In Hamdi v. Rumsfeld, the Court addressed the case of another American citizen, who was captured in Afghanistan before being declared an enemy combatant...

...As I argued earlier, they could change the way we talk about issues and empower different political coalitions...

...Since the Democrats regained control of Congress in 2006, the president has been acting sometimes with and sometimes against Congress...

...When the Court decided to reference foreign law in Lawrence v. Texas in 2003, Congress debated whether it could do this and held hearings on the question...

...This decision had a political ripple effect...

...The legitimating symbols of the Court (the robes, the appearance of detachment, the sophisticated legal opinions) help to separate it from other political institutions—and in a good way for the Court...

...If there had been a case about torture, for example, and some of the justices had written in detail about its evils, then Senator Patrick Leahy (senior Democrat on the Judiciary Committee) could have used the Justices' arguments to criticize attorney general nominee Michael Mukasey during his confirmation hearings...

...If we look at the United Kingdom and Canada, for instance, we see the highest courts in those countries participating more meaningfully in the debates about the rights that are threatened when governments decide to fight terrorism...

...Thus, even when Americans don't like a specific decision, they still support the Court...

...If the Justices discuss the potential problems for individual rights of a governmental action, even if they don't contravene the action, their decision still has enormous import...

...First, the justices view these questions from a distinct standpoint...

...The Liberal Democrats, Britain's third major political party, have made a habit of quoting language from Lords' decisions to attack Blair (and now his successor, Gordon Brown) for what former Liberal Democrat leader Menzies Campbell has called Labour's "trampling on human rights...

...And depending on how it decides those cases, it might decide to hear many more cases to clarify and expand on those decisions...

...Instead, we have a Court happy to call on various branches of government to act, but content to give them carte blanche when it comes to how to act...

...Indeed, all that the Supreme Court decided in Rasul is that Congress did in fact authorize people like those being detained in Guantanamo to file claims challenging their detention in American courts...

...Beyond providing a rhetorical sword and drawing attention to and legitimating certain issues, the Court can often shatter a stable political equilibrium and force us to reexamine settled political and policy agreements...

...What Role for the Court...

...court...

...The Court has shirked its responsibility to be engaged in and accountable for the legal issues raised by the war...

...Simply put, when the Supreme Court decides not to act, it poses problems for our democratic system—for it is held accountable only for what it does...

...And even though their highest courts were ultimately too deferential to the decisions of the other branches of government, the mere fact of their participation had an impact on the politics of their countries that our Court has not had...

...In 2002, the Canadian Court heard its first post-9/11 case, Suresh v. Canada, deciding that, except in "extraordinary circumstances," the Canadian government could not deport nonresidents to countries where they might face torture (although it also decided that it would largely defer to the government about whether the minister of immigration was right in estimating the likelihood of torture after deportation...

...This changed in 1925, when Chief Justice William Howard Taft, Jr., convinced Congress to pass a law making most of the Supreme Court's docket discretionary...

...Supreme Court phrases such as "one person, one vote" have enormous symbolic effect and practical influence...

...It is not hard to imagine the past six-plus 68 n DISSENT / Spring 2008 years having gone differently...

...In Canada, the Supreme Court has addressed rights issues since the days shortly after September 11...

...While members of Congress and the president have to focus more on short-term and tangible goods, members of the Court (regardless of which president appointed them) focus more on the long term and on abstract values...

...Some leftists have questioned the desirability of looking to the Supreme Court as a guardian of individual liberties, but I believe these questions to be misguided—for reasons indicated by the Canadian and British experience...

...Rather than deciding whether or not that was constitutionally permissible, the Court decided that Padilla had filed his lawsuit in the wrong American court...

...Then, in December of 2004, Britain's highest court (the House of Lords) found that some of his policies violated human rights norms...

...Take, for instance, the situation after the Supreme Court decided Hamdan in 2006...

...During the last few Supreme Court terms, the justices have decided about seventy cases per year...

...0 THERS ON THE left worry that Supreme Court decisions can be ineffective or even counterproductive, and that the American Court has played it right by waiting until there is so much public outcry against what the Bush administration is doing that the American people will see Court action as desirable...

...A Different Scenario The Supreme Court could have been involved in the main debates of the day without preventing us from effectively combating domestic and foreign enemies and without unduly interfering with decisions of the political branches about how to deal with terrorism...

...Again, the Court spent much of its time on structural issues—namely, whether Congress had authorized the president to detain Hamdi—but this time, if ever so briefly, it addressed the question of whether Hamdi's opportunity to challenge his detention was constitutionally adequate...

...Their courts have addressed more cases that deal with the rights issues at the heart of the war on terror...

...Within its community of peers, the Court also faces sanction for its decisions...

...With members of Congress standing up on the floors of the House and Senate, insisting that the Court had called and commanded them to act, Republicans and Democrats joined together to pass the MCA less than four months later, on October 17, 2006...

...The Court offers a perspective that the other branches simply cannot offer...

...We have endured years of a politics largely devoid of a necessary discussion of individual rights—and of a politics where rights advocates did not enjoy the support of the revered Supreme Court...

...There are several problems with this overly passive view of the Supreme Court, particularly during the war on terror...

...Although there is some debate about terminology and measurement, most scholars agree that the Court enjoys "diffuse" rather than "specific" support...

...After the highest British court intervened in December 2004 to criticize the way certain noncitizens were being detained, the British political situation changed immediately...

...Britain has had a much more open and longer lasting debate about torture, in large part because of a decision issued by the House of Lords in December 2005 that evidence induced by torture was inadmissible in British courts...

...It is hard to imagine a governmental system in which every branch of government weighs in on every major issue of the day...

...But in both cases, the Canadian Parliament was still given room to decide what individuals could be deported and how investigative hearings could be held...

...The Court will also decide whether those being held by the "multinational" force in Iraq have similar constitutional rights...

...It is true that the Court has intervened to decide several relevant cases following September 11: three in 2004, one in 2006, and then a few to come by this June...

...Congress overwhelmingly passed the Detainee Treatment Act (DTA) of 2005, which barred many of those complaining of torture from access to 70 n DISSENT / Spring 2008 a U.S...

...Even when citizens disagree with Supreme Court decisions, an overwhelming majority of them are loyal to the Court and inclined to think that the less popular branches of government should fall into line—even when the Court issues controversial decisions such as Bush v. Gore...

...A glance at Canada and the United Kingdom, then, reveals a stark contrast...

...A later petition filed by Hamdan, which would have forced the Court to address rights issues, was denied by the Court...

...When it told states and the federal government in Roe v. Wade that they could not criminalize all abortions, for example, the Court's decision was a binding legal order...

...Congress and the president are held accountable when they act and also when they do not...

...It has been more of a major player in the Canadian debate, and Canada has been the better for it...

...74 n DISSENT / Spring 2008...

...Its docket of cases was mainly prescribed by federal law...

...Many Americans hold the president and Congress accountable for not fixing our health care system or our educational system...

...None have addressed issues related to constitutional rights, such as the right to be free from arbitrary detention or imprisonment, the right to prove one's innocence, or the right to be treated equally...

...But the Supreme Court also plays a role in political debate, even when it does not order anyone to do anything...

...But this political activity occurred without the rhetorical and political effects that rights-based decisions would have had...