In a historic application of judicial power, the US Supreme Court
has elbowed its way into the war on terrorism.
It is that assertion of its authority as constitutional enforcer
that perhaps best highlights the high court's work in its 2003-04
term, which ended this week with a flurry of important decisions
involving terrorism, executive authority, and international law.
To liberals, the court's terror rulings are a shining example of
judicial courage to stand firm for the rule of law in the face of
presidential overreaching. To conservatives, they mark the clumsy
efforts of an imperial judiciary interfering in war powers reserved
for the president and Congress in times of national peril.
Regardless of such differing views, there is broad agreement that
the high court has asserted its power in a way that will ensure the
court's involvement in the war on terror for years to come.
By expanding the protection of US courts to a terror prison camp
at Guantanamo Bay, Cuba, and by soundly rejecting a White House
assertion of unilateral authority over enemy combatants, the Supreme
Court has set the stage for extensive litigation that only the
justices themselves will be in a position to resolve. "The court has
clearly become a player in the war on terror, and its decisions will
have an impact on the prosecution of the war," says Douglas Kmiec, a
law professor at Pepperdine University Law School in Malibu, Calif.
In addition to ruling in three terror cases, the justices during
their 2003-04 term upheld the McCain-Feingold campaign-finance law,
put new teeth into the Sixth Amendment's right of criminal
defendants to confront their accusers, and significantly undermined
sentencing-guideline plans as violating the right to a jury trial.
The term will also be remembered for several cases in which the
court sought to dodge major issues rather than confront them head
on. Asked to decide whether the words "under God" in the Pledge of
Allegiance amount to an unconstitutional government-endorsed prayer,
the high court dismissed the case on a legal technicality, ruling
that the California atheist who filed the lawsuit lacked the
necessary legal standing. The ruling had the effect of overturning
an appeals court decision declaring the Pledge unconstitutional.
But many analysts - including three dissenting members of the
court - felt the justices should have addressed the larger issue.
"There were a lot of disputes where, if they had come out one way,
it would have been momentous, but the court decided them on
minimalist grounds," says Vikram Amar, a law professor at Hastings
College of Law in San Francisco.
Several scholars note an apparent irony in the high court's
recent work. An institution that is supposed to resolve
constitutional controversies and end litigation is instead often
fostering constitutional confusion and a proliferation of lawsuits.
The court, for example, was unable to answer cleanly in a
Pennsylvania case whether political gerrymandering of congressional
districts can ever violate the constitutional standard of one
person, one vote. …