06/22/2008 01:32 pm ET | Updated May 25, 2011

A 5-4 Decision Lacks Moral Force

There are times when the Supreme Court is challenged not only to offer a legal ruling, but such rulings may also require the court's moral force. That was the case when the Supreme Court ruled 9-0 to overturn the de jure segregation of Plessy v. Ferguson in its 1954 ruling of Brown v. Board of Education.

The moral force of the 9-0 ruling set the stage for the Civil Rights Movement to take shape and transform the nation. Clearly, a 5-4 decision in Brown would not have had the same impact.

But a 5-4 decision was the best the Supreme Court could muster last week as it rebuked the Bush administration for the third time for its handling of the rights of terrorism detainees held at Guantánamo Bay, Cuba. The Supreme Court ruled those in custody there have a constitutional right to challenge their captivity in federal courts.

Justice Antonin Scalia, wrote in his dissent that the court's decision was a "self-invited ... incursion into military affairs." Adding that the decision "will almost certainly cause more Americans to be killed." The Republican Party's presumptive nominee, John McCain, was also critical of the ruling, calling it "one of the worst decisions in the history of this country."

The four justices that opposed this ruling along with those critical from the sidelines obviously believe that when it comes to the aftermath of 9/11 the Constitution is nothing more than an inconvenient document better suited for rhetorical gymnastics at a dinner party than actual implementation.

At the heart of this case is the Writ of Habeas Corpus, which simply asks, "is the person held legally?" Former Attorney General, Alberto Gonzales brazenly testified before the Senate Judiciary last year, "The Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right of habeas."

The Constitution does state, however, in article 1, section 9, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

The way habeas is written into the Constitution allowed Lincoln the room to legally suspend it during the Civil War. That hardly seems applicable here. Can we not distinguish between al Qaeda terrorists and those who are completely innocent and have been incarcerated for six years based on mistaken identity? Or should we continue the practice of one-size-fits-all?

How can it be that the writ of habeas corpus, which dates back to the Magna Carta in 1215, could hang by the sliver of a 5-4 decision?

These cases tend to receive little attention because the implied assumption is they only apply to those who desire to do America harm. But without habeas corpus 70 percent of the Bill of Rights would depend solely on the benevolence of the federal government.

Habeas prohibits the type of "rounding up the usual suspects" that has been conducted at Guantánamo for the past six years. It allows us to be a nation of laws rather than a nation of fears.

There cannot be 5-4 decisions on those issues that make America unique. Given this was the third time the Supreme Court has ruled against the Bush Administration, I remain doubtful that anything will change until they leave office, if then.

The country is always on dangerous footing when individuals within our government, regardless of their good intentions, believe they have found the exception that places them above the wisdom of our democratic values.

A 9-0, or even a 7-2 decision, might have brought with it the moral force to change the dreadful, self-induced course that the country has placed itself. Instead, the Supreme Court, with its 5-4 ruling, gave lip service to the Constitution, while the administration continues a stay-the-course policy based not on defeating the enemy with the power of its own values, but rather with actions closely aligned with those they subscribe to the enemy.

Byron Williams is an Oakland pastor and syndicated columnist. He is the author of Strip Mall Patriotism: Moral Reflections of the Iraq War. E-mail him at or go to his website