Digby asks: “Can somebody explain to me why everyone is assuming that Bush is going to be defeated in the Supreme Court on the Guantanamo and Padilla cases?” And, granted, predicting how O’Connor will vote in a given case is a fool’s game.
The best reason for this perception, though, is the consistent thread that runs through the Rehnquist Court: the idea that the Supreme Court, and only the Supreme Court, can give meaning to the Constitution. The key case to understanding the Rehnquist Court is
City of Boerne v. Flores, in which the Court struck down the Religious Freedom Restoration Act. What is remarkable about the case is the Court’s judgment that not only can Congress not give fewer rights than the Constitution guarantees, which makes sense, but that Congress can’t interpret the constitution to give greater rights to minorities. The Rehnquist Court is part of the great conservative ponzi scheme where if minorities ask from rights from the Court, they’re told to go to the legislature; when they go to the legislature, they’re told that it’s the perogative of the courts. This commitment to judicial supremacy also explains superficially surprising cases like Dickerson, in which Rehnquist himself wrote a 7-2 opinion upholding Miranda. Even if Rehnquist didn’t like the policy outcome in question, he wasn’t going to let Congress override it.
For this reason, I think that the cw about the Guantanamo and Padilla cases is correct. Moreover, because the cases are largely about jurisdiction, they’re easier than cases like Dickerson. The Court can claim jurisdiction without helping the defendants on the merits, a win-win situation for reactionary aggrandizers of judicial power. I wouldn’t be shocked if at least one of these cases is unanimous.