Each time I am disappointed by John McCain or remember one of the several reasons he was not my preference as a nominee for President, something happens to snap me out of it. In June it was the Supreme Court decision in Boumediene vs. Bush, which with a 5-4 stroke led by swing man Anthony Kennedy has extended the right of habeas corpus to non-American enemy combatants captured on foreign soil while attempting to kill Americans in war. It is no exaggeration to say that this will directly result in additional American deaths. How often do we need reminding that our Constitution is not a suicide pact?!
We have now created the monster of a future filled with judicial micromanagement intruding in the conduct of war. I wonder if Justice Kennedy has sufficiently thought through the, hopefully, unintended consequences of this decision. What will now happen to the Guantanamo detainees? The Senate has voted 94-3 not to transfer any of them to American facilities. How will future apprehensions on the battlefield be processed? Do our soldiers read them their Miranda rights before arrest and detention? It seems the Court has now interjected the American judiciary into the capture and detention of enemies with whom we are at war on foreign soil as well as allowed those already in custody to challenge their confinement–what a huge overreach of judicial authority and encroachment on the prerogatives of the elected branches of government.
On the positive side, the Court made several correct calls, albeit close ones, the most prominent one again with Kennedy as the swing vote in the most significant Second Amendment ruling since 1939. In striking down the District of Columbia gun control ordinance, the Court at long last gave assurance that the individual’s right to keep and bear arms in inviolable. The troubling aspect of the ruling is that, amazingly, based on some notion of an “interest balancing test”, there were four Justices prepared to rationalize away this most basic of rights inherited from our English heritage dating to the mid-17th century.
I will probably return to this point many more times before November–there are two questions to ask yourself in this election: (1) Who should be Commander in Chief? and (2) Who should make the next two appointments to the Supreme Court? Everything else is transient.