The SCOTUS 2007-08 term in review

The Supreme Court ended its 2007-08 term this week, and I'd like to briefly analyze (applying the Governance Imperative paradigm) a few of the more high-profile opinions that the Court issued this term. The opinions that I want to focus on are the following:

• D.C. v Heller


• Boumediene v. Bush


• Giles v. California


• Kenndy v Louisiana

D.C. v Heller

In this opinion, the Supreme Court rules Washington D.C.'s total ban on handgun ownership as unconstitutional, clarifying for the first time that the Second Amendment's "right to bear arms" is an individual right. Along with the Boumediene decision, this opinion will go further to securing the constitutional rights of Americans than any Supreme Court decision in a long time. It is also no coincidence that these are two decisions in which the Court most faithfully interpreted the Constitution on its own terms. It applied the structural framework of the Constitution to reign in the excesses of government, the original reason for the inclusion of rights in the Constitution. Justice Scalia's review of etymological and historical analysis of the words in the Second Amendment is well worth the read.

Boumediene v. Bush

The Supreme Court ended years of extra-constitutional probing by the Bush Administration and confirmed that the Constitution does indeed follow the flag. The Boumediene ruling rejected the Bush Administration's notion that enemy (i.e., illegal or non-uniformed citizen) combatants in the custody of the military at Guantanamo Bay do indeed fall within the purview of the federal court system. These prisoners do have the right to file petitions of habeas corpus and are not relegated to the woefully inadequate military commissions, established by Congress in the Military Commissions Act of 2006 (MCA).

The Constitution is rather vague on the process of how to suspend habeas corpus in Article 1, Section 9, but is clear on when the writ may be suspended: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Since the Suspension Clause is present in Article 1, it is generally recognized that only Congress may suspend the writ. Congress did limit the habeas rights of the Guantanamo detainees in the MCA, but the Court found that Congress did not provide an effective substitute "to correct any errors [of the tribunal], to assess the sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceedings." Given that the "habeas court must have the power to order the conditional release of an individual unlawfully detained," the MCA does not meet the constitutional requirements (demanded by case law) needed for suspending the habeas corpus.

The Court's opinion reminds us of the reason why the writ of habeas corpus is so vital to the American constitutional order. From the opinion:

That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution’s essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance.”

As in the Heller opinion, we see the Court applying the structural framework of the Constitution to reign in the excesses of the Government (in this case, the Bush Administration and Congress through the MCA).

Giles v. California

This is another very good decision by the Supreme Court, holding that "to admit into evidence the unconfronted testimony of the murder victim under a doctrine of forfeiture by wrongdoing" is a violation of a defendant's Sixth Amendment right (to be "confronted with the witnesses against him"). This is understandably troubling in society's attempts to prosecute domestic violence cases, but constitutional rights cannot be swept aside when they prove inconvenient. The Court seemed to have forgotten this fact over the past few years (e.g., its 2005 Kelo v. City of New London decision), but this term produced several opinions that evidence a shift back to remembering the role and function of the Constitution.

Kenndy v Louisiana

The Court held that the application of the death penalty as a punishment for the crime of child rape is a violation of the Eighth Amendment ban on cruel and unusual punishment. This decision exhibits the worst in the Court's tendency to substitute an objective application of the Constitution's structural framework to enforce fairness with its own moralizing, subjective opinions on what is right and wrong. This case, along with cases like Roe v. Wade and Lawrence v Texas, usurps the constitutional role of the legislative branch, politicizes the judiciary, and works to de-legitimatize the court system.

In our constitutional system, it is solely the place of the legislature to decide what is right through the framework of the law. This is a very imperfect process and can lead to sloppy, imbalanced punishments between laws of similar "severeness", but this can only be effectively remedied through the constant, untiring vigilance of the people, working through their legislatures, demanding justice and equality.