Order on the Court

By Taylor, Stuart, Jr. | Newsweek, July 5, 2010 | Go to article overview

Order on the Court


Taylor, Stuart, Jr., Newsweek


Byline: Stuart Taylor Jr.

Kagan may be to the right of Stevens on war powers. Why that won't matter much.

With Solicitor General Elena Kagan's Supreme Court confirmation hearing due to start June 28, left-leaning skeptics worry that she may be more deferential to presidential war powers--at the expense of civil liberties--than retiring Justice John Paul Stevens.

It's true that in the future, the justices are likely to take the president's side more often than in the George W. Bush years. But if that's the case, the main reason won't be the expected confirmation of Kagan. The real reason may be simpler: that the court has less cause to intervene in national-security matters now that the Bush-Cheney administration's extravagant claims of presidential power are history.

This is not to dismiss the speculation--by leftist critics, but also by some supporters of Kagan, including Harvard Law colleague Charles Fried--that she may be more inclined to support presidential war powers than Stevens. It was Stevens, after all, who led the liberal justices' charge against Bush's denial of due process to detained terrorism suspects. In doing so, Stevens and his liberal colleagues stretched judicial power over the military further than ever before.

While Kagan has said very little about such issues, her work representing the government in national-security cases has doubtless given her an appreciation of the challenges facing any wartime president. And records from her four years in the Clinton White House suggest that she may be less liberal overall than Stevens.

But even if the two were ideological clones, the court would have reason to revert to its traditional reluctance to second-guess the president in national-security cases. Bush's string of four big defeats in such cases was a historical anomaly, a reaction to his bold claims of virtually unlimited powers to detain suspected "enemy combatants" without due process; to try them in military commissions with rules stacked against defendants; to authorize rough interrogations; and even to defy congressional statutes, as when he ordered wiretaps without the judicial warrants required by the Foreign Intelligence Surveillance Act.

This executive overreach alarmed some of the justices and backfired when the court required judicial hearings and other protections, both for Guantanamo prisoners and for American citizens detained as enemy combatants in the U. …

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