President Obama may have timed the recent Supreme Court nomination of Judge Sonia Sotomayor to deflect attention from his controversial counterterrorism policies. The announcement came just days after he delivered a major speech defending his decisions to continue indefinite terrorist detention (which has been attacked by the Left) and to close the Guantánamo Bay detention camp (which has been criticized across the political spectrum) But far more enduring than any of President Obamas other national-security policies is his choice of a life-tenured justice for the Supreme Court. So rather than deflecting attention, Sotomayors nomination should intensify focus on this issue: Will she exercise judicial restraint on national security, as our constitutional system of separation of powers dictates?
The Constitution specifically grants the two elected branches of government the power to formulate national-security policy. The president is the commander in chief of the armed forces and may make treaties; Congress may declare war, regulate foreign commerce, advise the president on treaties, and consent to them. The judiciary has the crucialbut limitedrole of interpreting the Constitution and laws of the United States. Our countrys security is one of the most important concerns facing the electorate, which is why the Founders explicitly specified that such policies should be determined by the citizenrythrough the two elected branches.
Todays Supreme Court, however, is deeply divided about the judicial branchs role in national security. In some of the most contentious decisions since September 11, the five most liberal justices (Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, John Paul Stevens, and David Souter, whom Sotomayor would replace) have struck down counterterrorism policies implemented by the elected branches. The four conservatives (Samuel Alito, John Roberts, Antonin Scalia, and Clarence Thomas) have ardently dissented.
Take a 2008 case, Boumediene v. Bush, in which the Court was considering the Military Commissions Act of 2006, which bipartisan congressional majorities had passed and the president had signed into law. In a 54 opinion, the Court declared unconstitutional a provision of the Act that barred federal courts from hearing Guantánamo detainees habeas corpus petitions and ruled that those prisoners had a right to ask judges to set them free. The decision prompted a vigorous dissent from Scalia: What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as todays opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.
As Scalia predicted, the Boumediene decision has put the judicial branch on a collision course with the elected branches. Now litigants have asked the Court to consider whether judges may order the president to release Guantánamo prisoners into the United Statesagainst the presidents will and the will of Congress. A new case, Kiyemba v. Obama, concerns 17 Chinese Muslims, known as Uighurs, who received paramilitary terrorist training and have been imprisoned at Guantánamo. Last fall, Judge Ricardo Urbina of the D.C. District Court ordered that the Uighurs be set free in Washington, D.C. The Bush administration appealed, arguing that releasing the Uighurs would squarely conflict with U.S. immigration laws. This February, the D.C. Circuit Court of Appeals reversed Urbinas ruling. The Uighurs appealed to the Supreme Court, which will decide whether to hear their case later this month.
The Obama administration has filed a brief urging the Court to deny the appeal, largely on separation-of-powers grounds. Taking the same position as the Bush administration, Obamas Department of Justice argues that the elected branches, not the judicial branch, have the power to decide the Uighurs fate: The decision whether to allow an alien abroad to enter the United States, and if so, under what terms, rests exclusively in the political Branches. Meanwhile, the Obama administration is rushing to transfer the Uighurs to other countries, possibly to avoid a ruling from the Supreme Court, which could declare the case moot if all the Uighurs have been relocated. Last week, four were released to Bermuda, and the island republic of Palau has agreed to take several, if not all, of the remainder.
Whether the Supreme Court hears Kiyemba or waits for the next Guantánamo petitions, the point remains that judges should not defy the choice of the elected branches on where to release detainees. The American people undoubtedly have some thoughts on whether they want Guantánamo prisoners as their neighbors, and they are the ones who should ultimately decide, through their elected representatives. If a political official decides to release a Guantánamo inmate, he may be voted out of office. If a judge makes that decision (overcome, perhaps, by empathy for the detainee), the American people have no recourse.
Prior to becoming president, Obama endorsed a theory of judicial supremacy similar to that held by some of the Courts more liberal members. In voting against the confirmation of Justices Roberts and Alito, Obamas main concern seemed to be that the nominees might adhere too closely to the actual text of the Constitution and other laws. NowperhapsObama has backed away from his prior support of judicial activism, at least in the area of national security; he has largely taken the same position as President Bush on almost all counterterrorism cases and may not want the Courts newest justice undermining his judgment.
Yet some of Sotomayors statements raise concerns about her general view of the judiciarys role. At a panel discussion at Duke University in 2005, she articulated a theory that judges can and should make policy, rather than put aside their own policy preferences and evenhandedly interpret the law. (And I know, and I know, that this is on tape, and I should never say that, she added.) If she also believes that the Supreme Court should be the final arbiter on national security policy, the American people deserve to know it.
Stephanie Hessler served as a constitutional lawyer for the Senate Judiciary Committee during Justice Alitos Supreme Court nomination hearings and is an adjunct fellow at the Manhattan Institute.