Another Alito Critical Case
By Denise Best | Related entries in In The News, Supreme CourtHere’s another area of possible scholarly debate that will occur in respect to the Alito nomination - the government’s wartime powers .
The Supreme Court agreed Monday to consider a challenge to the Bush administration’s military tribunals for foreign terror suspects, a major test of the government’s wartime powers.
Justices will decide whether Osama bin Laden’s former driver can be tried for war crimes before military officers in Guantanamo Bay, Cuba.
Chief Justice John Roberts, as an appeals court judge, joined a summer ruling against Salim Ahmed Hamdan. He did not participate in Monday’s action, which put him in the difficult situation of sitting in judgment of one of his own rulings.
And the traditional swing voter?
In 2004 justices took up the first round of cases stemming from the government’s war on terrorism. Justice Sandra Day O’Connor, who is retiring, wrote in one case that ”a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
Arguments in the Hamdan case will be scheduled next spring, in time for O’Connor’s successor to take part. Bush has named Samuel Alito, an appeals court judge, to replace her. In his lower court decisions Alito has been deferential to government.
Add another log to the nomination fire.
This entry was posted on Monday, November 7th, 2005 and is filed under In The News, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
November 8th, 2005 at 9:02 am
Hmmm…
[Warning: the following comment is full of tangential thinking and its corresponding rabbit trails, and has only the slightest bearing on this specific post.]
I take a different tack on this whole thing. It’s a given that Alito is different than O’Connor, so pointing out those differences, with a view to showing people that the makeup of the court is going to change, is rather impotent (at least in the case of people who think like myself). Of course he’s different - that’s why the Right clamored for someone like him (as opposed to Miers). The question isn’t (or at least, it shouldn’t be) whether or not he and O’Connor would have voted the same way; the question is, which one of them is more in line with the governing document of the nation?
In that situation (which I admittedly haven’t looked into too much yet), it’s not what Alito says vs. what O’Connor said, but what they both said vs. what the Constitution says. Legal experts (left wing and right) have bemoaned the unConstitutionality of the Roe v. Wade decision, for instance, opposing it not because of the principle issue that it decided, but because of the way that it was decided. (On this tangent, the Wall Street Journal had an interesting analysis of what would happen in the event that RvW was overturned by SCOTUS - namely that individual states would then decide to make abortion legal or illegal for their jurisdictions, and that the Right would have neither the rallying political issue or the ability to outlaw the practice en total; so they basically lose by winning). So William Saletan’s piece on Alito’s legal views toward women, while informative, ultimately has little bearing on the issue at hand. Whether or not you agree with O’Connor or Alito on the morality of an issue, the point is (and has always been): what does the Constitution say about how that issue should be decided?
It’s also interesting (and I know you haven’t made this argument, but it just occurred to me that I’ve heard it implied elsewhere - especially in Saletan’s column - and that train of thought wants to leap to the page now) that so many of us pundits are wringing (or rubbing) our hands together over this pick, as if we were worried that the content of SCOTUS won’t represent the will of the people at large. The problem with this thinking is that the SCOTUS was never intended to be representative of the people - which is precisely why they are picked in the manner that they are (that is, appointed, not elected). That’s actually the whole point: to have a restraint against the full exercise of democracy (which is precisely what de Tocqueville was so wrapped up in when he paid his famously insightful visit those two hundred years ago - tyranny of the majority, and all that).
Anyway, there’s more to this issue (and in my head) that wants to be discussed, but I’ve rambled on far too long already, so I’ll waste your time no longer.
Austin
August 6th, 2006 at 9:14 pm
Good job.