June 13, 2008

Reagan Democrats and Enemy Combatants

By now, you’ve likely heard plenty of analysis of whether yesterday’s Boumediene decision by the Supreme Court – striking down the heart of the Military Commissions Act of 2006 (MCA) and bestowing the right of habeas corpus on terror suspects held at Gitmo – was correctly reasoned. So take a break from that debate and consider a few related questions about judicial activism, the impact of Boumediene on the election, and the mystery of the missing conservative Supreme Court:

1) The Supreme Court showed little deference to Congress, which enacted the MCA by large majorities in both houses. So why aren’t liberal politicians, pundits, and law professors denouncing the decision as a case of judicial activism? After all, these are the same folks who have spent the last decade trying to redefine judicial activism by pointing to the Rehnquist / Roberts Court’s occasional lack of deference to legislative enactments, while eschewing the classic definition – that is, the elevation of a judge’s policy preferences above objective interpretation of statutory and constitutional law. The truth is that liberals’ newfound championing of judicial deference is short on sincerity. Instead, it’s a tactic based on discarding the honest but failed defense of the philosophy behind decades of liberal judicial activism in favor of a “so do you” argument. For more on this change in tactics, see here.

2) What happened to the “far right” Supreme Court that has been the subject of so much media attention and liberal hand-wringing of late? The truth is it never existed. While it’s certainly true that the Court has drifted right of the New York Times, the nation’s law faculty, and the typical elite cocktail party, the dirty little secret is that the Court is decidedly centrist when compared to the American people. The hysteria about the Court’s “right wing assault” on abortion, desegregation, and the separation of church and state has obscured the fact that large majorities of the public oppose partial-birth abortion and racial preferences and favor some role for religion in the public sphere. Had the Court ruled against enemy combatants yesterday, the decision would surely have been reported as further evidence of the Court’s “lurch to the right,” despite the fact that – outside the chattering classes – the American people express little support for expanding the rights of foreign terror suspects.

3) How will the Supreme Court issue play out in the upcoming election? In recent weeks, pundits have buzzed about how Democrats will use the prospect of several Supreme Court vacancies to scare Hillary Clinton’s supporters into the Obama camp. We’ll see how many women fall for the long-running “one vote away from back ally abortions” routine. But what’s clear is that recent events – particularly yesterday’s Boumediene decision and last month’s gay marriage edict from California’s highest court – have teed up the Supreme Court issue nicely for the GOP. Everyone seems to agree that the key to the presidential contest is winning the hearts and minds of Reagan Democrats. And there’s little doubt where that group stands on judicially-mandated gay marriage, expanded civil liberties for the guests at Gitmo, and the like. Given Obama’s pronouncements about the type of judges he would appoint, no exaggeration is necessary to raise the concerns of these swing voters about the prospects of an Obama-sculpted Supreme Court.

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