The Absurd Report

“Security depends upon a sophisticated intelligence apparatus and the ability of our armed forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles.”

Advertisement
So wrote U.S. Supreme Court Justice Anthony Kennedy, in his majority opinion, of the 5 to 4 ruling in Boumediene v. Bush. While no one could dispute Justice Kennedy’s principled phrasing, this may be one of the worst Supreme Court decisions since the 1857 Dred Scott case.

As the rationale for granting habeas corpus rights to enemy combatants held at Guantanamo Bay, Cuba, Justice Kennedy appealed to America’s love of freedom. He wrote about “freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.”

Yet, in Dred Scott, Chief Justice Taney claimed then, as Justice Kennedy is claiming now, that he was protecting liberty. Justice Taney, like Justice Kennedy, used the same moralizing to justify his decision. Justice Taney, like Justice Kennedy, said he was concerned about due process.

Yet, history has taught us that Justice Taney’s defense of slavery in Dred Scott was not a defense of personal liberty. History will teach us that Justice Kennedy was not protecting any principle of freedom.

Quite the contrary, as Justice Antonin Scalia, arguably one of the finer legal minds on the Supreme Court, wrote in his dissent of Boumediene v. Bush, not only was Justice Kennedy and the majority not guaranteeing principles of freedom, they were abandoning them:

” … today’s opinion … will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.” (Emphasis mine)

Justice Kennedy’s statement notwithstanding, with this ruling the Supreme Court is eroding the separation of powers. The court is usurping the role of the legislative and executive branches.