Reading the accounts of the Supreme Court's oral argument yesterday on the Guantanamo prisoner appeal, I am struck yet again by the unweening arrogance of the US judiciary. Set aside the substantive merits of the case, of which I believe Justice Jackson's aphorism "the Constitution is not a suicide pact" more than adequately disposes (see also my friend and colleague Eugene Volokh's more substantive critique). Instead, consider how offended some members of the Court seemed to be by the notion that any aspect of American life might lie outside their reach. Breyer, for example, complained: "It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check."
Apparently only the Supreme Court is "free to do whatever they want ... without a check." If five of the nine unelected old men and women on that court agree, they can strike down any law or executive action. And our elected representatives have essentially no power to constrain them other than the impractical route of amending the Constitution. We have allowed the Supreme Court to tell our elected representatives that they cannot pass morals legislation, for example, while a Supreme Court majority is free to impose its moral judgments on all of us. It is nothing short of judicial tyrrany.
My bet, by the way, is that the Court will rule that US courts have jurisdiction. And then we'll get some left-liberal judge (probably on the 9th Circuit) deciding to let the terrorists go.
