The Right Coast

July 02, 2004
Volokh on Rasul
By Mike Rappaport

Eugene Volokh has responded to my post on Rasul. Eugene writes that although Rasul was decided on statutory grounds, there are various reasons to believe that the majority would also prefer to interpret the constitution to have the same meaning as the statute. While I agree with Eugene that the majority justices might want to interpret the Constitution that way, I am less confident that five of the justices would be willing to do so in the circumstances he envisions. If there were enough political support for the Congress and the President to pass a law cutting back on habeas for noncitizens outside of the United States, it would be extraordinary for the Supreme Court to hold that legislation, concerning military affairs and national security, unconstitutional. Moreover, if Congress were to frame the legislation so that it adopted a traditional standard, such as the standards used during World War II, it would be even harder for the Court to have the political will to strike it down. Thus, I believe that Justice O’Connor as well as some of the other justices in the majority would not be willing to strike down a statute that dealt with the problems Eugene discusses. Of course, this is a just a prediction, and Eugene might think otherwise.

Once again, though, none of this is to justify what the Supreme Court has done. It is just that I think the political actor that is the Supreme Court is more sensitive to political considerations, and danger to the public, than its pronouncements at times seem to imply.