Hamdan As What We Make It

Mark Graber

Hamdan is a 5-3 decision that is for all practical purposes a 5-4 decision and one that puts the ball, at least temporarily in the legislative court. It is neither to be celebrated nor condemned until [sorry about typo in previous version] the future is clearer. On some futures, the main feature of Hamdan is sanitizing a vicious policy. On others, the decision might do serious good. Consider the following.

1. Hamdan history 1. Within the next year, one of the moderate 4 or Justice Kennedy leaves the Court and is replaced by a Samuel Alito clone. Hamdan is overruled or confined to cases involving chauffers. Politics continues in its present direction and the case is never heard from again.

2. Hamdan history 2--Congress produces a fairly vague statutory response. Bush claims power under that statute and is sustained either because Kennedy (or Breyer) thinks the statute sufficient or bacause Bush has had another judicial appointee, altering the balance of power (see history 1). The statute remains on the books for the foreseeable future, largely because Congress is uninterested in taking responsibility for much of anything.

3. Hamdan history 3--The Democrats win big, really big in 2006 and 2008, Congress passes a law sharply limiting military commissions, President H. Clinton gets four judicial appointees in her first term (replacing Kennedy, Scalia, Stevens, and Roberts) , and those appointees share Marty's interpretation and enthusiasm for Hamdan. While the Democrats lose control of the White House in 2012, Congress remains committed to controlling military tribunals and the Supreme Court remains committed to Congressional power.

4. Hamdan history 4. Same as in 2, only in 2112, something like 3 occurs. When asked to justify this assertion of legislative and judicial power, the Speaker of the House and Chief Justice cite Hamdan. We could tell a similar story about Marbury.

In short, Hamdan is the sort of decision that is likely to depend a great deal on the future course of American politics. On some versions (versions I suspect are fairly likely), Hamdan will not matter much. On other versions, versions I would prefer, the decision may prove very important.

The main lesson may be that those of us who hope for 3, should recognize that the court can only do a little work for us, that Hamdan is only likely to become a landmark case if people are elected who want Hamdan to be a landmark case.
Posted 9:43 PM by Mark Graber [link]