Jewish World Review July 1, 2004 / 12 Tamuz, 5764
Our runaway Supreme Court
All in all, thanks to the Supreme Court of the United States, it was a pretty good week for imprisoned terrorists and pornographers. Let's start with the terrorists.
In cases challenging the Executive Branch's authority to retain custody of Americans or foreign "enemy combatants" seized during overseas military operations, the Court ruled that these detainees have the right to federal court review of the legality of their detention. Exactly how, where, and using what rules of evidence, is up in the air. But one thing is for sure, our federal court system, already backlogged, is preparing for what is sure to be an avalanche of litigation filed by the 600+ detainees at Guantanamo Bay.
How big is the monster the Court has created here? Justice Antonin Scalia, dissenting in Rasul v. Bush, warned that "the court boldly extends the scope of the habeas statute to the four corners of the earth." In his lone dissent in Hamdi v. Rumsfeld (involving a detained American combatant), Justice Clarence Thomas, wrote "no governmental interest is more compelling than the security of the Nation," and that the President the official primarily responsible for safeguarding our security must necessarily be allowed to use "broad discretion" to carry out his duty.
Yes, the Court reaffirmed the general obligation and right of the Executive Branch to classify certain detainees as "enemy combatants." Yes, the Court recognized that federal courts must give substantial deference to the Executive Branch in its consideration of the habeas corpus petitions. But much like we saw in the Warren court era (think "exclusionary rule," Miranda warnings), the current Supreme Court has once again made it more difficult for our country to protect itself from real danger. Now a captured enemy combatant has been handed a new weapon courtesy of the Supreme Court the right to litigate against, and waste the resources of, our government. Thanks a bunch.
Yet the cheers weren't just coming from the cells at Gitmo this week. The smut kings were doing a victory dance too. The Court, in a 5-4 squeaker, ruled that the Child Online Protection Act signed into law by President Bill Clinton in 1998 and passed by a bipartisan majority in Congress is overbroad and may infringe on an adult's ability to get pornography. The horror!
"There is a potential for extraordinary harm and a serious chill upon protected speech," wrote Justice Anthony Kennedy. To heck with the extraordinary harm posed to children. By the way, this is the second time Congress has rewritten the law to attempt to satisfy the Supreme Court. But Lucy pulled the football away from Charlie Brown once again.
We get frustrated, and understandably so, when we feel that our elected officials get so caught up in preserving their own power that they avoid tackling important issues. Yet this week, we see how that when our elected officials actually did try to take serious action on two major fronts protecting us from terrorism and protecting our children from pornography the Supreme Court kicked them in the teeth.
As impatient and irritated as we can get with the other two branches of government, we should now properly direct our anger at the judiciary. It is simply out of control. These cases are only the latest in a long line of Supreme Court cases where the will of the people and the original meaning of the Constitution have been trampled. Any one who calls himself a conservative today will have to think seriously about backing legislation to restrict the reach of the federal courts.
Endnote: Ironically, at the same time the Supreme Court was undermining efforts by Congress to shield children from on-line porn, President Bush was in Turkey trying to persuade the Arab and Muslim world that embracing democracy does not lead to depravity:
"Some people in Muslim cultures identify democracy with the worst of Western popular culture, and want no part of it. And I assure them, when I speak about the blessings of liberty, coarse videos and crass commercialism are not what I have in mind. There is nothing incompatible between democratic values and high standards of decency. For the sake of their families and their culture, citizens of a free society have every right to strive peacefully for a moral society."
Excellent insight if only the Supreme Court agreed.
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JWR contributor Laura Ingraham is the host of a nationally syndicated radio show and the author of the just released "Shut Up and Sing: How Elites from Hollywood, Politics, and the UN are Subverting America". Comment by clicking here.
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© 2002, Laura Ingraham