Let me begin by stating that I am not a lawyer. Nor am I a scholar of constitutional law. So I’m probably missing something. But this still strikes me as strange.
Tonight, according to the New York Times, the Supreme Court ruled “in a 5-to-4 decision that split along ideological lines” (don’t they all?) not to stay the execution of a Mexican citizen on death row in Texas. He was executed a short while later.
The Times article has the details of the case and the decision, but this part caused a bit of cognitive whiplash:
Justice Stephen G. Breyer, in a dissent joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, wrote that the government’s request was modest given that allowing the execution to proceed would, in the solicitor general’s words, “cause irreparable harm” to “foreign-policy interests of the highest order” and endanger Americans traveling abroad.
The court should defer to the executive branch’s assessment, Justice Breyer wrote, as “the court has long recognized the president’s special constitutionally based authority in matters of foreign relations.”
He proposed issuing “a brief stay until the end of September” to allow Congress time to act.
“In reaching its contrary conclusion,” Justice Breyer wrote, “the court ignores the appeal of the president in a matter related to foreign affairs, it substitutes its own views about the likelihood of congressional action for the views of executive branch officials who have consulted with members of Congress, and it denies the request by four members of the Court to delay the execution until the court can discuss the matter at conference in September. In my view, the Court is wrong in each respect.” [Emphasis mine]
Huzzah? Aren’t Breyer and Ginsburg two of the justices who voted to supersede the authority of both the president and Congress on an even more critical aspect of foreign policy: the detention and interrogation of enemy combatants in a time of war?
As far as I understand, in the 2006 case Hamdan v. Rumsfeld, the Court ruled (with Breyer and Ginsburg in the majority) in favor of Salim Hamdan—the late (love saying that) Osama Bin Laden’s driver—who argued that his habeas corpus rights were being violated because he was going to be tried by a military tribunal instead of a civilian court. (The administration had argued that such tribunals were vital to national security because, among other reasons, they would allow for the presentation of classified evidence that could not be aired in a civilian court.)
The Supremes didn’t rule that the tribunals were unconstitutional per se, but asked that they be rooted in statute. So Congress passed the Military Commissions Act of 2006, which President Bush signed.
But the Supreme Court—again with Breyer and Ginsburg in the majority—said “to heck with that” in 2008, in Boumediene v. Bush. The justices found that, even with the passage of Military Commissions Act, the detainee—Lakhdar Boumediene—had habeas corpus rights under the Constitution and could not be tried by a military tribunal.
So on vital matters of national security in a time of war—when the president and Congress together actually pass laws to ensure that our foreign policy may be conducted in a particular way—Justices Breyer and Ginsburg are just fine tossing aside the wishes of the executive and the legislature. (Indeed, in their dissents in Boumediene, Justices Roberts and Scalia both warned that the judiciary was substituting its own judgments for those of the democratically elected and accountable branches—and those with greater experience and knowledge on matters of warfare and national security—with harmful consequences sure to follow.)
But when it comes to the rights of a foreign national who kidnapped, raped, and murdered a 16-year-old girl, well, then we must defer to the president based on his “consultation” with Congress about legislation that might get passed sometime this year?
To put it another way: In order to give terrorists a break, Breyer and Ginsburg are cool with overriding the president and Congress. But when foreign-national kiddie-rapers need a break, they do a 180 and say that the Court should show more deference to the president and Congress. The only consistency I can detect is a willingness to argue whatever is necessary to defend some really unsavory characters.
Am I insane, or is this insane?