Monday, June 11, 2007

A panel of the Fourth Circuit ruled today that the government can't indefinitely hold US residents as 'enemy combatants'.

Over at the VC, there's a lively debate as to whether the ruling will be upheld. And, for all of the collective brainpower weighing in and citing one precedent or another and one law or another in support of their prediction, they are all barking up the wrong tree, as they ALL fail to note that all of the laws and all of the previous decisions have absolutely no impact on whether the Supreme Court will vote to reverse.

The Supreme Court will reverse (or nor, as the case may be) on one factor and one factor only: whether 5 justices think what the government is doing is okay. To paraphrase Townsend, 'they decide and then they rationalize'.

For way too long, the Supreme Court has been making decisions based on the personal feelings of the individual justices. Justices personally opposed to the death penalty 'find' ways of ruling it (or, in a roundabout way of accomplishing the same thing, the process) unconstitutional. Justices who are in favor of granting blacks and women preferences 'find' ways of deeming such constitutionally permissible. Justices in favor of George Bush becoming President found in the Constitution the grounds of stopping the Florida Supreme Court from finding in the Florida Constitution the grounds for making Al Gore President.

And so it goes. If 5 Justices think it is okay to indefinitely detain without trial enemy combatants captured in the United States, then they'll find the grounds to legitimatize the practice. And if they don't think it okay, they will find in the Constitution the grounds to invalidate the process.