The most dangerous branch

The Los Angeles Times column by Boalt Hall Professor John Yoo on the Supreme Court’s Hamdan decision is the column of the day: “The high court’s Hamdan power grab.” Yoo writes:

What makes this war different is not that the president acted while Congress watched but that the Supreme Court interfered while fighting was ongoing. Given its seizure of control over some of society’s most contentious issues, such as abortion, affirmative action and religion, maybe the court’s intervention should come as no surprise. But its effort to inject the Geneva Convention into the war on terrorism — even though the treaties do not include international conflict with non-states that violate every rule of civilized warfare — smacks of judicial micromanagement. The Supreme Court has never before imposed its preferred interpretation of a treaty governing warfare on the president during war, and Geneva has never been understood to give enemy combatants rights in our courts.

The court displays a lack of judicial restraint that would have shocked its predecessors. In World War II, the Supreme Court established precedents directly to the contrary. To evade these previous rulings, the court misread a law ordering it not to decide Guantanamo Bay cases, narrowed the very same authorization to use military force that it had read broadly just two years ago, ignored centuries of practice by presidents and Congress on military commissions and intruded into the executive’s traditional national security prerogatives. Justices used to appreciate the inherent uncertainties and dire circumstances of war, and the limits of their own abilities. No longer.

Charles Krauthammer’s column complements Yoo’s: “Emergency over, saith the Court.” At NRO, Matthew Franck adds an important qualification to Krauthammer’s column regarding the damage the Court did in Hamdan. (Courtesy of RealClearPolitics.)

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