It's been quite a week for the Supreme Court.
Here is one of their decisions today, Hamdi vs. Rumsfeld, dealing with whether someone that the Executive Branch declares to be an “enemy combatant” is entitled to a writ of habeas corpus and access to U.S. courts. Once again, the media didn't do it justice. They reported that it was a 6-3 decision in favor of granting the writ and access to the courts.
When you actually READ the opinion, you find that 6 judges formed a centrist opinion that made a hard call saying that the balance tipped in favor of granting rights.
Justice Thomas penned a dissent, arguing that while the Executive Branch doesn't have completely unchecked powers in time of war, the judicial branch is not competent to review executive branch findings in such cases as this. Astounding.
Here's the super interesting part: the other dissent was written by Scalia and Stevens. That's right, the single most liberal and single most conservative judges on the Supreme Court set aside their differences and wrote a beautifully worded dissent. It gives a wonderful history of the writ of Habeas Corpus, all the way back to English common law. It then goes on to say that while the Constitution clearly gives Congress the ability to authorize the President to suspend Habeas Corpus, there is a very specific and explicit way that Congress needs to do that, and in the case of the Authorization for Use of Military Force, Congress didn't do it.
What Scalia and Stevens wrote is a dissent at one level, because they think that the majority made a poor decision. But it is an even more emphatic affirmation of Hamdi's right to a writ of habeas corpus and access to U.S. courts.
It's great reading. I highly recommend it. [Kevin Schofield's Weblog]