Legal Commentary

The Supreme Court's decision in Boumediene v. Bush was almost a month ago and most the good commentary already has been made. But a thought I had while running this morning (I know, I know, I need to get some music on my iPod) leads to this a-bit-late post.

To what extend does do the detainee cases and the long march from Hamdi to Hamdan to Boumediene--illustrate a drawback to the idea of judicial minimalism, of courts deciding nothing more than is absolutely required to resolve the case before it? Or at least a conflict between minimalism and the idea of an "interbranch conversation." In Hamdi, the Court insisted that Gitmo detainees were entitled to some process with respect to status determinations; the President provided that process by executive order; in Hamdan, the Court insisted that the President could not do this without Congress; Congress provided for process by statute Military Commissions Act; and in Boumediene the Court said that process was insufficient, that full habeas was necessary (or at least something more than what the MCA provided). This opened the door to Chief Justice Roberts' criticism that "Congress followed the Court?s lead, only to find itself the victim of a constitutional bait and switch." But could the Court avoid that charge if, departing from minimalism, it tried to do more at the outset, perhaps even getting to the ultimate point that, yes, full habeas is required or come up with grounds for a valid suspension?

Now, maybe Roberts' charge, although significant, is not a big deal. Maybe defending against that is better than the charge of judicial overreaching that would have accompanied the jump to habeas rights in 2004. Maybe (likely) the Court and the public were not ready in 2004 (before the war had taken a turn, before the word about torture got out, before public opinion turned, before the realities of Gitmo were revealed) for a recognition of full habeas rights for detainees. If it is true that the Court follows more than it leads, such a dramatic step might not have been possible. Maybe minimalism reflects a convergence with the interbranch-conversation idea. The Court had to leave Congress some room to act in response after Hamdi, then Congress responds to the Court and the Court considers the congressional response--that is the point of the conversation. In a sense, perhaps, there was no constitutional bait-and-switch. The Court kicked the issue to Congress (twice) for Congress to reach the "right" answer on this, but it remained for the Court to evaluate that answer (which it found wanting), which it finally did in Boumediene. The real problem was not minimalist decisions, but decisions that did not give Congress enough guidance.

Maybe this is how it should work in a constitutional democracy. But it looks like an awfully long way to get to an important constitutional point.