Making Our Democracy Work (34 page)

The Court also had to consider a second government claim, namely, that the new act did not really suspend the writ because, by designating the court of appeals to review tribunal decisions, Congress had provided an adequate substitute for the writ of habeas corpus. The Court rejected this claim. The act did not explicitly give the appeals court the power to order a prisoner’s release. Appellate court review could not easily make up for the tribunals’ special pro-detention procedures, for example, the defendant’s lack of a right to attend all proceedings and to see the evidence against him. The act did not give the appellate courts the power to hear evidence that came to light after the tribunal reached its decision, nor could the appellate courts review a prisoner’s claim that the Defense Department should have convened, but did not, a tribunal in light of evidence that the prisoner had recently obtained. In any event, six years had passed and the prisoners still had not received habeas review, and the court of appeals’ approach threatened even more delay. Anyway, Congress did not
want
a habeas equivalent—it had deliberately sought to limit judicial review.
⁴²

The dissenting justices concluded that the Court should not have decided the questions until after the court of appeals had decided the detainees’ individual cases by applying the new act’s standards. In any event, the Court should have given the appeals court an opportunity to cure any procedural defects by finding them contrary to the Constitution or laws of the United States, just as the new act gave that court the power to do. Moreover, in the dissenters’ view, historical practice supported the government. In addition, the Court’s “functional” test of the writ’s scope would prove too difficult to administer in practice. It might well leave army field commanders uncertain as to whether courts would review their battle-specific decisions. And these potential
consequences showed that the Court’s interpretation was belied by the Constitution’s delegation of the war powers to the president and Congress, not to the Court.

I
N EXAMINING THE
Guantánamo cases, I have not described at length the fierce arguments between majorities and dissenters. Nor have I considered how timing, personalities, the popularity of the war in Iraq, the approval ratings of the president, and similar matters might have psychologically influenced the parties’ presentations to the Court or its decisions. I have focused instead on the way the Court tried to protect the individual rights of highly unpopular individuals in circumstances where the president’s and Congress’s constitutional powers to detain those individuals were particularly strong. And I have emphasized the Court’s efforts to understand, and to respect, the role that other governmental institutions must play in wartime or where there is a special risk to national security.

In these four cases, the Court, aware of its role in protecting constitutional guarantees of liberty, recognized that the government’s lengthy detention of an individual raised serious constitutional questions. It began by interpreting statutes in light of their purposes, always assuming those purposes were consistent with our constitutional traditions. It decided constitutional questions only where necessary and always answering those questions narrowly. It proceeded slowly, step-by-step, recognizing throughout the institutional need for the president, with congressional support, to manage wars and similar threats to national security. It recognized too that those threats will sometimes require special procedures that offer individuals less protection than normal. But it did not explicitly determine the precise nature of those procedures or when or where the Constitution permitted their use. Rather, where possible, the Supreme Court left exploration of these implications of its decisions to other institutions, including the lower courts, to work out. The Court’s Guantánamo decisions seem to say, “Sufficient unto the day.…”

The strongest criticism of the Court’s holdings, and one that the dissenters emphasized, is that the Court has not set forth clear criteria that would bind lower and future courts. It has created constitutional
uncertainty about where the line is that presidents acting with congressional support may not cross. But what is the alternative? Although constitutional interpretations that did not restrain the president would have created more certainty, they would have come at the price of eliminating protections on which the Constitution insists. At the same time, a set of clear legal rules—a matrix of what and how and when and where and whom the Constitution protects—runs the risk of doing just what the critics seek to avoid, namely, interfering significantly with the powers of Congress and the president to protect the nation.

Where a serious threat to security exists, the need of the other branches to exercise broad discretionary power is great. But in the Guantánamo cases the Court nonetheless exerted a tug on the constitutional string. It made clear that the president can be held constitutionally accountable.

What was the practical value of the Court’s holdings in these cases? The decisions did not secure speedy release of the Guantánamo prisoners, and many prisoners spent several years detained there, including some seventeen Uighurs who the government later said did not pose a threat to the United States. In part this long delay reflects the case-by-case way in which courts must work. In part it reflects the fact that after the Court’s initial decisions, Congress responded with statutes supporting the president’s actions.
⁴³

Still, the cases should slowly but surely bring about constitutional consideration by judges of the individual Guantánamo detainee cases, and the opinions may have considerable impact as precedent and as symbol. Rather than leaving a future executive administration free to act as it wishes, as the
Korematsu
Court effectively did, the Court left four cases for study by future presidential advisers. The cases counsel caution. They make clear that a president must take account of the Constitution, as interpreted independently by the Court. In that sense, in the Guantánamo cases, the law “held.”

C
ONSIDER TOO THE
fact that, controversial as the Court’s Guantánamo decisions were, the president and the public nonetheless accepted them. In
Hamdan
a highly unpopular individual, bin Laden’s
driver, won his case, and the president of the United States lost. In
Boumediene
the Court set aside a congressional statute, but there was no strong public movement urging President Bush to ignore the Court’s decisions. President Bush, unlike Andrew Jackson, expressed disagreement with the
Boumediene
decision but also said that he’d follow it: “We’ll abide by the court’s decision,” adding, “that doesn’t mean I have to agree with it.”
⁴⁴

Widespread public acceptance of the Court’s Guantánamo decisions may reflect in part political or other circumstances over which the Court had no control. But the way in which the Court decided the cases may have helped as well. The Court independently wrote decisions designed to safeguard constitutional protection of individual rights while also interpreting the Constitution in a workable way. The Court sought to respect the roles of other government branches. It sought to recognize the practical security needs that underlie enemy combatant detention. It proceeded cautiously, step-by-step. It decided the ultimate constitutional issue presented in
Boumediene
only after the Court had engaged in a dialogue with the other government branches through other case decisions over a period of several years.

Regardless, the other government branches thought it natural and appropriate to abide by the Court’s decisions. That fact reflects two hundred years of American history. Americans today accept the Court’s role as guardian of the law. They understand the value to the nation of following Court decisions, including those that protect unpopular minorities, even when they disagree with a Court decision and even when they may be right and the decisions may be wrong.

The public’s acceptance is never a sure thing. It cannot be taken for granted. It must be transmitted through custom and understanding from one generation to the next. At the time of the Guantánamo cases, that hard-won custom of acceptance was strong enough for the Court, at a time of crisis, to exercise its distinctive power of judicial review. The Court could define and enforce constitutional, liberty-protecting limits. And the law held.

T
HE FRAMERS OF
our Constitution sought to create a democracy that would protect our liberty, work in practice, and endure over time. They saw the need for an institution that would patrol the legal boundaries that the Constitution created. Alexander Hamilton thought the courts were best suited to exercise that power, not because judges necessarily make wiser decisions, but because lodging that power elsewhere was more dangerous. A president with sole responsibility for deciding whether his own acts complied with the Constitution would become too powerful. A Congress with that power would act too politically; it would too rarely strike down a statute that was popular. The judicial branch, however, lacked both “purse” and “sword.” It was and is the “weakest” branch of government. And judges are expected to ignore political pressure when they decide cases.
¹

But can the Court exercise this power effectively? First, when courts issue decisions protecting those who are unpopular, will the public follow the decisions? In Hotspur’s words, “Will they come when you do call for them?” The question is critical.
Active Liberty
, my previous book, pointed out that the Constitution’s efforts to create democratic political institutions mean little unless the public participates in American political life. Similarly, the Constitution’s efforts to assure a workable constitutional democracy mean little if the public freely ignores interpretations of the Constitution that it dislikes. In this book,
Part I
described a nation that has gradually come to place confidence in the
Court, accepting decisions with which it disagrees. And it provided examples of some of the ups and downs along the historical path that has led to this general acceptance.

Second, how can the Court write opinions that help the laws, including the Constitution, work well in practice?
Part II
described approaches that can help. It offered a practical approach to constitutional interpretation.

What does it mean for the Court to take a “practical” attitude toward legal interpretation? It means the Court will maintain strong workable relationships with other governmental institutions. It means the Court will take account of the constitutional role of other institutions, including their responsibilities, their disabilities, and the ways in which they function.

The concept of a workable Constitution is neither abstract nor ad hoc. We have seen examples of how that general idea helps shape more specific approaches to particular kinds of legal questions. Those approaches in turn can be useful when the Court faces difficult questions arising in different areas of law.

The approaches include those based on purposes and consequences, including the purpose of a reasonable legislator, where congressionally enacted statutes are at issue. They include comparative expertise, viewed in terms of a statute’s objective, in respect to executive branch administrative action. They include subsidiarity in respect to interpreting federalism-related statutes. They include specialization in respect to the roles of the lower courts. They include stability in respect to the Court’s relation through precedent to Courts of the past. As
Part III
pointed out, they include values and proportionality in respect to the interpretation of basic individual rights. And they include accountability in respect to the president and Congress in times of serious threats to national security, even if related practical and conceptual difficulties mean that the Court only sometimes tugs the accountability string.

These approaches do not make up a detailed theory of how to decide cases in general. They do not provide criteria for the evaluation of all cases. Nor will they prove useful in every case. They put to the side many factors that could affect how the Court does in fact decide
cases—factors such as social or political context; the basic philosophical views of individual judges; contingent factual circumstances about the country that seem relevant at the time of decision; a consensus among bench, bar, and academy that earlier Court cases have gone “too far” in one direction and the Court should “pull back”; or new appointments to a Court perhaps made in order to change its direction. But simplification is necessary in order to describe the basic logic—the bones—of a few legal approaches that I believe can, should, and do play an important role when the Court decides. These approaches are consistent with one another. They form a coherent whole. And they can prove highly useful in resolving particularly difficult cases, area by area.

The approaches supplement other traditional legal tools, such as text, history, tradition, precedent, purposes, and consequences. They help to implement the Constitution’s own basic objectives, such as maintaining our democratic institutions, protecting fundamental individual rights, securing a degree of equality, dividing and separating governmental powers, and ensuring a rule of law. But, importantly, they do so in a way that helps the Court apply unchanging constitutional principles to a world of continuous change. As a result, they help the Court produce legal interpretations that work better for those that the law seeks to serve. The ultimate benefit is that the public is more likely to understand and accept the Court’s decisions as legitimately belonging to our democratic society. Thus, these approaches help to provide an affirmative answer to Hotspur’s question. When the Court calls, the public will come. The Constitution’s generally phrased promises will be kept in practice.