THE SUPREME COURT, HABEAS CORPUS, AND THE WAR ON TERROR: AN ESSAY ON LAW AND POLITICAL SCIENCE

This Essay seeks to illuminate the Supreme Court's habeas corpus cases arising from the War on Terror up through the 2008 decision in Boumediene v. Bush by supplementing traditional legal analysis with three propositions derived from recent political science literature. First, the space for judicial review under the Constitution is "politically constructed" by the tolerances of Congress and the President, as supported by public opinion. Consistent with this proposition, the Supreme Court has operated mostly on the margins of the nation's War on Terror policy, but has grown more assertive since the near aftermath of 9/11 in recognition of a changing political climate and a lessening sense of the urgency of the terrorist threat. Second, George W. Bush was a failed "reconstructive President" who came up short in his efforts to persuade the public and the courts to embrace a constitutional vision of vast, unilateral, and judicially unreviewable executive branch authority to combat terrorist threats. Third, the Supreme Court is a "they," not an "it," whose War on Terror rulings have often reflected, as future decisions are likely also to represent, the chance dominance of the view of the median Justice. Because Justice Kennedy has cast the decisive vote in a disproportionate share of cases, the emerging doctrine bears his distinctive stamp. In matters involving national security, however, the likelihood of final settlement of disputed issues by judicial doctrine is smaller than in less fraught areas of constitutional law. Should the War on Terror become significantly more terrifying, all bets would be off. It is at least inevitable, and may well be desirable, that the ideal of the rule of law should have some (which is not to say limitless) play in the joints—even with respect to the Great Writ of habeas corpus that our tradition celebrates as liberty's ultimate safeguard.