Make no mistake: Judicial recognition of near dictatorial powers on the part of the president — or more accurately, as I’ve noted before, on the part of conservative presidents — failed by less than the width of the “skin” of an amoeba.
In broadly ruling that George W. Bush acted illegally in creating military tribunals without congressional authority, the Court voted five-to-three; Chief Justice Roberts (who would have been the fourth dissenting vote) didn’t participate because he had been on the appellate court panel that earlier decided the case in Bush’s favor.
If John Paul Stevens, currently 86-years-old, had happened to have died or retired sometime during the preceding five years, thereby enabling Bush to appoint yet another Scalia/Thomas clone in his place, the case would have gone the other way. Assuming nothing else changed, the decision would have been four-to-four with Roberts not participating. And under the Supreme Court’s rules, in the case of a tie vote, the ruling of the lower court (which in this case upheld the tribunals) stands. And while decisions based upon tie votes are not considered to be precedents that control later decisions, sooner or later under this scenario another case involving Bush’s alleged broad presidential powers to fight terrorism would have made its way to the Supreme Court and Roberts would have been free to vote, cementing the result.
It’s incredible, really, how much difference one Supreme Court justice can make. A little over five years ago a case decided by the vote of just one justice (the Court voting five-to-four) selected the President of the United States. Today, another case decided (for all intents and purposes) by the vote of just one justice has helped to prevent, at least in part and for a time, the creation a de facto dictatorship by that very same president.
So let me propose a prayer — a prayer for Justice Stevens’ continued good health.
And just in case Justice Stevens himself harbors any doubt about the wisdom of his remaining on the Court at his age, let me introduce him to Judge Wesley E. Brown, a federal district court judge in Wichita, Kansas who is continuing to hear cases at age 99 (and no one practicing law in front of him doubts for a second that he’s still up to the job).
So you see Justice Stevens, you’ve only just begun!