Let us all pray — for Justice Stevens

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!

6 Responses to “Let us all pray — for Justice Stevens”

  1. alwayshope Says:

    What does it mean exactly? Do they now just hold them there forever?
    Did the ruling have anything to do with their status as prisoners of war or military combatants or whatever they are? Or will they now have trials?
    It would sure be nice if this ruling caused something to happen. That place is an embarassment and an affront to our system of law but it still seems to be up to Bush to decide what, if anything, to do about it.
    I thank Justice Stevens, and wish him many more years on the court,
    but I have been betrayed by the supremes before and I have no faith in them now. It just doesn’t seem to matter what the law says anymore because Bush and Co. will do what they want anyway. There’s no one to stop them or make them obey the law. So, what does the law or this ruling matter when applied to this administration?

  2. askalice Says:

    Yes, I will indeed pray for the longevity of Justice Stevens. It’s the occasional carrot like this that keeps this old donkey (me) plodding along, despite all the sticks…

    Thank you, Justice Stevens. May you live forever!

  3. Again Says:


    So, what does the law or this ruling matter when applied to this administration?

    it matters - yes, you’re right, i thought the same thing - who will care?

    But it shows that the Supreme Court (at least until now) is not willing to allow the destruction of the Separation of Powers - it is a symbol

    btw - a symbol well noticed in Europe, loud touted - i guess, some kind of relief and simply hope, because no one knows better how easy it is to kill democracies…

  4. RJHall Says:

    I agree, long live Justice Stevens. Nevertheless…

    Remember the cases 2 years ago, when Sandra Day O’Connor wrote “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens” and everybody thought that Prexy was going to be stopped and Guantanamo was going to be shut down because the Supreme Court had finally stated the obvious, that U.S. citizens have a right to challenge their government detention in court (its holding was reported in that groundbreaking journal “Duh”)? O’Connor was held up by liberals during the Roberts and Alito confirmation hearings as a perfect example of what a wonderful Supreme Court Justice should be, kind of like a grade-school teacher giving an underachieving kid gold stars because he managed to spell his name correctly on his test paper. (Just as the otherwise fine Chief Justice Roger Taney is remembered today only for the Dred Scott decision, 150 years from now O’Connor will be remembered only for the Bush v. Gore decision. At least Taney had the guts to sign his name to his opinion!)

    So now, what will happen after Justice Stevens’s opinion in this case that Prexy needed Congressional authority to do what he did? Congress will give it to him, that’s all, and probably without a fuss. (Sigh.)

  5. RJHall Says:

    In reading a little more online about this case, I notice that time and again this case is compared to (and its decision refers to) the famous Youngstown “Steel Seizure” case from 1952 when President Truman seized the steel mills without Congressional authorization as part of his war powers in conducting the Korean War. The political differences between then and now make all the practical difference, I think. In 1952, literally MINUTES after the Youngstown decision, Truman complied with it and handed the seized steel mills back to their owners. In this case, in 2006, obviously Prexy has not yet and will not do that. As I said above, probably nothing will come of this case except that Congress will authorize Prexy to go right on doing what he’s doing. (Some other parts of the Court’s holding in this case are that Prexy’s military tribunals did not comply with the Geneva conventions as required by another Congressional statute, but that’s no problem; Congress just needs to add to its new authorization “notwithstanding the requirements of the other statute and the Geneva conventions”.) So, the historical and political differences and realities are what REALLY distinguish this Hamdan case from Youngstown and are why the latter really mattered and the former might not (keep hope alive!), except that maybe it will be studied in law school alongside Youngstown.

    I repeat, long live Justice Stevens, because after him, the Court will probably have 5 votes to overrule this Hamdan case anyway.

  6. RJHall Says:

    Actually, this disquieting thought just occurred to me, which I hasten to assure everybody is based on absolutely ZERO inside information and doesn’t even rise to the level of a rumor, though come to think of it it’s probably just the sort of rumor that Karl Rove would start through Drudge or something, and in fact maybe he already has or soon will, but if so then I am not a part of it, as this just occurred to me while I was mowing the lawn today:

    What if Justice Stevens is ALREADY planning to retire this summer, and intended his Hamdan opinion to be his swan song, the Court’s last gasp of defiance to Prexy and the Emperor Palpatine Brigade he’s the front man for?

    Have a good weekend, everybody! :)

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