Supreme Court Engages in Constitutional Accountability

Much is being said about the U.S. Supreme Court’s decision today in Boumedienne v. Bush, a 5-4 ruling determining that detainees at Guantanamo Bay have habeas corpus rights; and our own Chief Counsel, Elizabeth Wydra (a habeas specialist!), will be posting here shortly with her own thoughts and analysis.

But one thing we’d like to posit right now about the discourse thus far: the Yahoo! News headline captured here, “Supreme Court Sides With Guantanamo Detainees,” fails to capture the essence of Justice Kennedy’s opinion, and would better be replaced by something like:
“Supreme Court Applies Constitutional Text, History To Gitmo Detainees”
Not an entirely immodest proposition for a new blog dedicated to just that proposition, we know. But if there was ever a case demonstrating that arguments rooted in text and history can be marshalled to support progressive results, the moderate-to-conservative Justice Kennedy’s opinion in Boumedienne truly is it. Lyle Denniston, live-blogging the decision at SCOTUSBlog, captured this in part when he referred to Kennedy’s lengthy musings on habeas as “an almost rhapsodic review of the history of the great writ.” Furthermore, TChris at Talk Left points readers to key excerpts that appeal to the Constitution’s separation-of-power structure (a subject we’ll probably have more to say about later on).

Kennedy’s language is, simply put, that of constitutional accountability. Justice Scalia, who took the rare step of reading his strongly-worded dissent from the bench this morning, surely recognized that on some level. We respectfully hope that he continues to welcome such debate, because if we have anything to say about it, he’ll no longer have the playing field to himself when it comes to text and history.