Breyer and Ginsburg: Inconsistent Much?

 

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?

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  1. Profile Photo Inactive
    @TheMugwump
    Kenneth: Are they inconsistent? No, they’re not. As I’ve often said, I can tell you within three seconds what a Leftist will have to say about any issue. Same goes for the Leftists on the Supreme Court; they will always vote for the enlargement of government, the interests of the enemies of our freedoms and national interests and the diminution of individual rights and traditional values. · Jul 7 at 8:00pm

    Exactly. The liberal members of the court are ideologues with an agenda. The rule of law for them is a nuisance. Their job is to subvert it by whatever means possible, consistency and logic be damned.

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  2. Profile Photo Member
    @

    Oddly enough, though I don’t believe for a second that the Obama administration’s appeal on this case was anything other than a naked grab for Hispanic votes, I tend to support the underlying rationale in favor of the treaty. If I were ever jailed in a foreign country, I’d want that country to respect my legal right to consular representation.

    However, I digress from the question you ask. Are they inconsistent? No, they’re not. As I’ve often said, I can tell you within three seconds what a Leftist will have to say about any issue. Same goes for the Leftists on the Supreme Court; they will always vote for the enlargement of government, the interests of the enemies of our freedoms and national interests and the diminution of individual rights and traditional values.

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  3. Profile Photo Editor
    @RobLong

    You are not insane, Meghan. Well, of course, you might be, but not in this case.

    But what I was more struck by is the idea that this person had lived in the United States for thirty years. He came here when he was 2.

    Thirty years?

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  4. Profile Photo Inactive
    @PikeBishop

    Your not insane and neither are the dissenters in this ruling, they’re just hacks.

    From the right side of the decision:

    The United States and JUSTICE BREYER complain of the grave international consequences that will follow from Leal’s execution. Congress evidently did not find these consequences sufficiently grave to prompt its enactment of implementing legislation, and we will follow the law as written by Congress. We have no authority to stay an execution in light of an “appeal of the President,”, presenting free-ranging assertions of foreign policy consequences, when those assertions come unaccompanied by a persuasive legal claim.

    H/T Ace

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  5. Profile Photo Member
    @JDFitzpatrick

    In both cases they sided with the poor and downtrodden who were just trying to destroy America. Where is the inconsistency?

    • #5
  6. Profile Photo Member
    @AmishDude
    Kenneth: … I tend to support the underlying rationale in favor of the treaty. If I were ever jailed in a foreign country, I’d want that country to respect my legal right to consular representation. · Jul 7 at 8:00pm

    Yeah, but if you do get jailed, that’s the first thing you ask for.

    Now I haven’t seen a lot of very clear reporting on this but one thing I’ve seen is that they argued that the violation wasn’t that he was denied access to a consular official but they didn’t tell him he could ask for one. Considering that he’s been in the US since he’s been 2, I don’t know if they even knew he was a foreigner. The reporting made it very clear that was the issue. Considering the US isn’t a signatory to that treaty, this is really technical stuff.

    Moreover, this is at the end of a loooooong appeals process. Breyer’s ridiculous appeal for a short stay is disingenuous in the extreme (and in no way constitutionally indicated). If Congress wanted to act, they would have done so months ago.

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  7. Profile Photo Inactive
    @StevenDrexler

    Breyer and Ginsburg simply let the mask slip that all the Supremes wear. The one that lets them pretend to be above and unaffected by politics. Of course, those two are rank ideologues from the get-go, but even Thomas and Roberts do a little bit of yoga (I wouldn’t call it contortionism) to help the Republican/conservative side win from time to time.

    We need to end lifetime appointments to all federal courts. Especially the SCOTUS.

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  8. Profile Photo Inactive
    @KenSweeney
    Kenneth: Oddly enough, though I don’t believe for a second that the Obama administration’s appeal on this case was anything other than a naked grab for Hispanic votes, I tend to support the underlying rationale in favor of the treaty. If I were ever jailed in a foreign country, I’d want that country to respect my legal right to consular representation.

    1. This can be fixed by granting illegal immigrants amensty and US citizenship. Problem solved!

    2. Jean Kirkpatrick has the perfect description for the consistency of left wing legal reasoning: “Blame America First.”

    • #8
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