Let the Bill of Rights take a bow

I sometimes think I fill the role of the Grinch that Stole Christmas when it comes to exciting federal district court decisions.  I’ve just been burned too many times by wonderfully reasoned trial court decisions in favor of the good guys on politically relevant issues, only to see them go the way of the dodo on appeal.  Most federal circuit courts (the appellate courts between the district courts and the Supreme Court) are extremely conservative now.  And the Supreme Court — well, do I even have to go there?

So today’s decision by Judge Anna Diggs Taylor declaring the Bush Administration’s warrantless surveillance program unconstitutional, while immensely encouraging, leaves me less than overjoyed.  It faces what’s likely to be a rocky road on appeal. 

People shouldn’t read too much into the Supreme Court’s recent 5-to-3 ruling in Hamdan v. Rumsfeld striking down Bush’s military tribunals.  There’s no doubt that the majority in Hamdan felt Bush had grown too big for his britches, but that’s far from a guarantee they’ll buck him on this one.  The Bush Administration has generally fared well in litigation involving claimed national security interests.

I also think the politics of this decision will be decidedly mixed.  Expect to see Bush & Co. hit the talk show circuit arguing that this is why we need to rein in the “activist liberal judiciary” and suggesting that national security will be severely imperiled if the decision is upheld.

But on second thought, screw all that.  For now at least, the Bill of Rights won a big one today and the imperial presidency took a well deserved hit.  So go ahead Bill of Rights — take a bow.      

9 Responses to “Let the Bill of Rights take a bow”

  1. Chuck Says:

    Generally speaking, I think over-optimism on this point, and at this time, is premature. On the other hand, judges, especially those on the Supreme court, are very jealous of their power.

  2. hizzhoner Says:

    Maybe I’m too much of an optomist but I keep thinking that without fear of retaliation or, more precisely, in recognition of their independence, the Supreme Court will suddenly, unexpectedly come to its collective judicial senses.

    But then again, I’m a dreamer…..


  3. Rusty Says:

    As long as the majority of the Supremes are members of the club–not too unlike that exclusive club that existed in Germany between 1933 and 1945, they will do what they are told. Will probably be done with a simple phone call. Imagine that? Total circumvention of the Constitution with a phone call. Won’t need judges after a while, which must I suppose the Supremes might find frustrating. All that law school and such just to become a gauleiter. Oh, well. Power is power. I just hope the feed us a little better in all of those camps Halliburton is building.

  4. Larry the Red Says:

    Then how do you explain Hamdan, Rusty? I share Hizzhoner’s optimism. The NSA’s warrantless spying program is such an in-your-face challenge to the very concepts of separation of powers and the rule of law that even Scalia might have a problem defending it (but not Thomas and Alito; Roberts I’m not sure about). I’ll bet the Hamdan majority holds, and might even grow here.

  5. dgvb55 Says:

    Personally, I think that taking a bow is a lot better than the “bend-over” the Constitution has had to endure over the last six years.

  6. alwayshope Says:

    good one dgvb55!

    I’m an optimist too. Surely wearing the robes of a Supreme Court justice does give them pause. No matter how polically motivated, they have a legacy too and history will judge and tell their story to generations. They may think long and hard before scapping the constitution for the sake of one moron who would be king.

  7. Again Says:


    No matter how polically motivated, they have a legacy too and history will judge and tell their story to generations

    but what if they think, THEY will write history?


    ”That’s not the way the world really works anymore,” he continued. ”We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality — judiciously, as you will — we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do.” Faith, Certainty and the Presidency of George W. Bush ((Emphasis mine)

    do you know, that Magda Goebbels killed her SIX children because she truly believed the world OUTSIDE the Third Reich would be so “inhuman”? Never underestimate the power of faith…

  8. dgvb55 Says:

    Frankly, I’m an optimist as well. Not so much in terms of whether the SCOTUS is looking at history’s future judgement, but that history will record that they’re pissin’ us off RIGHT NOW. I also believe that this is the time when the Republicans are going to discover that money can’t buy everybody. Over 60% of the people are against what they’ve done to us and our country. So if the Democrats can find a way to jettison the “bush-lites” of the party, I like our chances.

  9. ElleninBigD Says:

    I particularly like the part where Judge Taylor said she didn’t need to see any national security documents because the program was already public and hadn’t been denied by George and the Gang. I also thought it was a pretty common sense ruling. So. . .I don’t know. Let’s hope the Supremes are concerned about their legacy. Maybe if it takes a while for Taylor’s decision to go through the appeals process, Roberts (at least) will become a little more centered (no pun intended). Supremes tend to do that over the years. Just ask Nixon.

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