Sunday, July 09, 2006

Cass Sunstein Replies

Guest Blogger

Cass Sunstein

Many thanks to Marty for continuing the discussion. By way of concluding my remarks at this stage, just three brief thoughts:

1. It is interesting to ask what the division on the Court would have been in Hamdan if the President had been named Clinton rather than Bush. Of course it's not clear that the division would have changed, but it might have been. (For supportive evidence, showing a strong effect of the President's party identification on judicial review of executive action, see this paper by Thomas Miles and me, appearing soon in the University of Chicago Law Review, entitled Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron.)

2. On high-profile legal issues of this kind, there is a risk of group polarization, in which like-minded people (liberal or conservative) stir one another into a state of excessive confidence. Consider the (odd?) fact that before Hamdan, (almost all?) legally informed observers who didn't vote for President Bush tended to believe that the NSA program was unlawful -- whereas legally informed observers who did vote for President Bush tended to be far more sympathetic to the President's legal claims. Of course there are exceptions.

Note in this regard that in Hamdan itself, the majority and the dissent were divided on at least seven major questions, all of them pretty technical. Offhand I can't think of a time, in the Court's entire history, in which the Justices split, in a single case, on so many questions; Hamdan might in this regard be the all-time champion.

3. The real question, of course, is the effect of Hamdan. It will be interesting to see if executive branch lawyers can produce a plausible argument, post-Hamdan, in favor of the NSA program. In light of Justice Stevens' reasoning, the defense of the program is greatly weakened. Justice Thomas' dissenting opinion could easily be adapted in favor of the program, but of course skeptics could contend that military commissions are easier to defend -- and after all, Justice Thomas was dissenting.


The effect of Hamdan will only last as long as Stevens does, or one of the other liberals who hopefully leaves.

Every reader here knows that if Stevens got hit by a bus last February, and Bush put an Easterbrook/Williams/whoever on, the WH wins this case.

Hopefully, Stevens leaves sooner rather than later and the mostrosity that is Hamdan is thrown in to the garbage can, where it belongs(along with Roe v Wade, Lawrence v Texas, FEC v McConnell, Roper v Simmons and a whole host of others might I add).

Nice work, Cass, way to stand up to the liberal appeasers. Cngratulations on your posts.

I don't have a dog in this hunt, as I'm not a lawyer or even very well informed on constitutional issues. I read this blog to see how you guys who are well informed (and extremely so) go at each other, in hopes of getting some sense where the facts/analysis rightfully leads.

I do want to mention, though, that I think it's way beyond the pale of intellectual discourse or even common human decency to be talking about a supreme court justice being hit by a bus, and, in the subsequent sentence, to "hope" that he leaves soon.

Sometimes the intensity of your views, no matter what they are, can lead to some really ugly places that are, ironically, inconsistent with the values you claim to be at the core of your beliefs.

In other words, you're entering Ann Coulter territory, Sarah. And no matter how often Coulter reminds us that she's a Christian, her attitudes to other human beings suggest otherwise, or at least that she doesn't understand her faith very well.

C.S.'s hypothetical, "what if clinton were president" is akin to asking whether a tort is a tort on the moon. it's the kind of nonsense question that gets asked by a 1L in the front row of his classes...Clinton would not have engaged in this war or sanctioned the lawless behavior that necessitated Hamdan.

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