LAW FROM THE CENTER

Today, the Intel Dumper gives a right-on pan of William Rehnquist's All The Laws But One. Of the book, he writes:

Unfortunately, I found this book to be quite superficial and conclusory. It added little to the legal history that I have been able to glean from other sources, such as Lawrence Friedman's many books and the cases themselves.

As I told you here, Rehnquist has written another book that's lacking in the substance department and chock full of nitnoid detail, The Supreme Court. But I digress. Let's get back to why Rehnquist is no war jurisprudence scholar:

Moreover, Justice Rehnquist's book obscures certain areas (e.g. the Lincoln Assasination trials) with too much detail and glosses over other important areas (like the WWII internments) with too little detail. He also devotes an inordinate amount of text to biographical detail about justices on the Supreme Court through history, ostensibly because those details reveal something about their character and jurisprudence. But in doing so, he downplays the legal reasoning and facts of these cases. Obviously, the sitting Chief Justice knows a lot about judicial decisionmaking, and maybe he thinks that these personalities are paramount. But it seemed odd to me, because I've learned in law school that facts and law have at least some bearing on the outcome of a case.

Yeah, facts and law sometimes have a bearing on the outcome of a case; that is, until you get to Supremeville. Then all the bets are off (just read Bush v. Gore then try and say otherwise; there were at least five better ways to hand Bush the presidency if they wanted).

Why does this matter? Because the two Guantanomo cases before the Supreme Court this term (Padilla & Hamdi) will require the Court to revisit the old WWII jurisprudence on this matter, the Japanese Interment Cases:

So... the Chief Justice thinks the Supreme Court did the right thing in deferring to executive/military authority in upholding President Roosevelt's Executive Order 9066, the Japanese internment order. And presumably, he would apply the same logic today, where the government has articulated a similar need to pro-actively defend citizens (albeit on the basis of individualized suspicion) whom it deems to be waging war against the United States as an agent of Al Qaeda.

After reading this book, I now see something about to happen in the Supreme Court this spring that I hadn't seen before. On the one hand, you have a movement within the law to overturn the precedents of Korematsu and Hirabayashi -- two stains on American jurisprudence that live on as "good law" (in a strictly precedential sense) to this day. Within the Court, I can count a few votes against the government in Hamdi and Padilla that partly rest on the desire to overturn these two decisions. On the other hand, I can also see a part of the Court (led by Justice Rehnquist) siding with the government's position in these cases, under the theory of judicial deference. Justice Rehnquist appears to have had no problem with such deference during WWII (when he served as a sergeant in the Army Air Corps). And the fight right now is not over the wisdom or efficacy of these policies -- it's over whether the President has the power to make them, and whether the courts have the power to review them. With the battle lines drawn that way, I think Justice Rehnquist's book makes it clear how he will come out.

I couldn't have said it better myself. Anyone holding out hope that Rehnquist will follow reason when ruling for the government better think again. As was the case in Bush v. Gore, the conservatives on the court won't be happy with simply ruling for the government while devising precedent more tolerant that Korematsu and Hirabayashi; they'll most likely give the government more than it wants and stand firm behind these cases that have been marked suspect by scholars and historians alike.