06/13/2008 02:07 pm ET | Updated May 25, 2011

Fear-Mongering, Activism, and the Guantanamo Cases

By Doug Kendall and Elizabeth Wydra

Conservatives love to decry result-oriented judging--except when they don't like the results compelled by the law.

In reacting to the Supreme Court's decision yesterday in Boumediene v. Bush, which held that Guantanamo detainees enjoy the protections of habeas corpus, President Bush responded that he "strongly agree[s] with those who dissented" because that "dissent was based upon their serious concerns about U.S. national security." Bush was echoing Justice Scalia, who began his overwrought opinion with war-on-terror body counts and bluntly stated that the Court's decision upholding habeas rights "will almost certainly cause more Americans to be killed."

Overlooked in this fear-mongering is the Constitution. The Constitution is what the Supreme Court must interpret, enforce, and remain faithful to--it is not the role of the Supreme Court to soldier in support of the war against terrorism. The Supreme Court's role is to ensure that the United States remains a Nation of laws, even in turbulent times, even in the face of grand-scale politics.

Conservatives have accused liberals for decades of abandoning the text and history of the Constitution in favor of their political agenda. But that is a good description of what Justice Scalia is advocating for in his dissenting opinion in Boumediene. Scalia tacitly acknowledges that his favored result is motivated by the "disastrous consequences" chronicled in the beginning of his opinion.

When he half-heartedly turns to supporting this result based on constitutional text and history at the end of his opinion, his arguments go nowhere. Scalia argues at length that when the Constitution was ratified in 1789, habeas corpus did not apply outside the territory of the United States. At the end of this argument, however, Scalia concedes that even he believes habeas does apply extraterritorially: just not to "alien enemies." But Scalia cannot point to a shred of support in text of the Constitution or the history of the common law of habeas corpus for the proposition that habeas protects citizens abroad, but not aliens detained by American forces.

Scalia also tries to argue that the Constitution's prohibition against suspending the right to habeas corpus acts just as much to stop the courts from extending the writ of habeas corpus as it does to prevent the political branches from withdrawing the writ. This is silly: the Suspension Clause limits Congressional power and the Founders plainly understood habeas corpus as an essential check for the judiciary to use to combat tyranny by the Executive Branch.

So who exactly are the "activist judges" in all of this? Not Justice Kennedy and the four other justices who joined his majority opinion (Kennedy and 2 of the other 4 justicesin the majority were nominated by Republican presidents). Kennedy crafted a nuanced, scholarly analysis of the text, history and structure of the Constitution to find that Guantanamo detainees have the right to seek habeas corpus relief. This is a courageous opinion, but certainly not an activist one. Indeed, it could be called judicial activism not to enforce the check-and-balances the Founders established in the Constitution when faced with unconstitutional Executive encroachments.

Standing up for the Constitution against political will is a fulfillment of the Justices'--and each public servant's--oath to uphold the Constitution. Despite all the right-wing bluster about fidelity to constitutional text and history, the detainee cases find the conservative Justices too willing to capitulate to Bush Administration policies and fear mongering. It's long past time to rethink that "activist judge" label.

Doug Kendall is President of Constitutional Accountability Center, Elizabeth Wydra is the Center's Chief Counsel.