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Judicial Review

The Supreme Court concluded its 2003 term with decisions supporting the legal rights of enemy combatants and free speech on the Internet. Margaret Warner reviews the judicial opinions of the recent term with Douglas Kmiec, a professor at Pepperdine University Law School, and Harold Koh, dean of Yale University Law School.

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  • MARGARET WARNER:

    The court's most eagerly anticipated decisions– dealing for the first time since 9/11 with legal issues raised by the war on terror– didn't emerge until this week. But in the course of this term, the high court issued more than 70 rulings, on controversy ranging from executive branch authority and free speech, to the rights of states and criminal suspects.

    We assess the term with two long-time court watchers: Harold Koh, the new dean of Yale Law School; and Douglas Kmiec, a constitutional law professor at Pepperdine Law School, and former dean of Catholic University Law School. Welcome to you both. Before we get into specific cases, Professor Koh, what stands out for you about this term in terms of what makes it memorable?

  • HAROLD HONGJU KOH:

    I think there are three themes this term that really counted: Globalization, shared power and foreign affairs and practical politics. There were nine cases involving international affairs including the three 9/11 cases that came down two days ago and then the alien tort case that was decided yesterday. And the court tipped very decisively in favor of globalization, that the court would see itself as a force in being part of the international system. On executive power, the government had asserted these terrorism cases that the president could act alone.

    The court rejected that and said that all three branches particularly the courts had to be involved. In an area of practical politics the court was asked on two occasions to strike down statutes that represented very careful political compromises, the McCain-Feingold case and a part of the American for disabilities act. In both cases the court said these statutes are working. We should leave them alone and let them go. The key figure this term, Sandra Day O'Connor she was really at the heart of all of these cases.

  • MARGARET WARNER:

    Professor Kmiec, even if you don't agree with his take on the cases, do you agree that those are sort of the big three themes: Globalization or the sort of intersection of international law with our court, the second was executive power, and then these political cases?

  • DOUGLAS KMIEC:

    Well, you're right to anticipate, Margaret, I do have some disagreements with the assessment of the cases but I do think those are important areas. I would add a few and I would add the ones that I think are felt by the person on the street.

    We had this enormous debate about the pledge of allegiance and whether or not it was appropriate to make a reference to God in the context of that patriotic exercise. I think that galvanized interest in the court and in the court's proceedings and the fact that the court ultimately didn't really decide the case was a bit of a let-down. I also think there were a number of practical decisions dealing with the federal sentencing guidelines, for example, where the court reaffirmed the proposition that the essential elements of a crime, the essential elements of a sentence, anything that is not admitted by the criminal defendant or is not proved has to be proved to the jury rather than the judge.

    This has already had a practical effect in the sense that one federal judge has struck down the U.S. sentencing guidelines as unconstitutional in light of this. And there are a number of other areas such as the preemption of a state law that allowed individuals to file causes of action against their HMO's that the courts… the court struck down the state law that allowed for that cause of action which I think people will see as a practical effect. But there's no question that executive power dominates the characterization of this term.

  • MARGARET WARNER:

    If we look, Professor Koh, at the terrorism cases, do you think the court broke new ground? I mean to some degree it was a new topic, this war on terror, and there were new issues arising from it. Did it break new ground?

  • HAROLD HONGJU KOH:

    I think that the administration wanted the court to break new ground. The administration's position was basically, "trust the president as commander in chief to deal with the war against terrorism." In particular they held some 600 people at Guantanamo and said they had no right to a writ of habeas corpus and they were holding American citizens on American soil as enemy combatants, the Padilla case out of New York and the Hamdi case out of South Carolina.

    The Supreme Court said," we're not going to leave it to the executive branch alone. This "trust us" rationale doesn't work. The courts have to be involved" and particularly when individual rights are at stake all three branches have to participate. And in the Hamdi case I think the court really delivered a stinging rebuke to the administration. They said that Hamdi had to have access to counsel. He had to have notice. He had to have an opportunity to rebut charges against him.

    He couldn't just be held on labels alone. With regard to Guantanamo, they said Guantanamo is not a land without law, that detainees who are held there for more than two years have a right to have the legality of their detention tested. So I think the administration wanted to say that there are individuals who are outside the law, enemy combatants, and there are geographical areas in which they have total control, Guantanamo, and they lost on both counts.

  • MARGARET WARNER:

    But Professor Kmiec, at the same time the court did recognize this new idea about an enemy combatant, did it not, and that the president does have a right to detain even a U.S. Citizen not on formal criminal charges but as an enemy combatant.

  • DOUGLAS LITTLE:

    I think that's exactly right, Margaret. I would disagree with the dean on the issue of the whether or not the president was rebuked by these cases. I think the president asked for a certain latitude in conduct of a very unconventional war, a war that this country has never faced before and it is true that he said that his determination of enemy combatant should be the final word. The court said, well, we'll give substantial deference.

    We'll give favoritism to the government's position. We'll allow the government to prove its position with hearsay evidence. We'll place the burden of proof on the detainee, but we are going to provide an element of due process to an American citizen, to allow him to challenge the government's characterization. So the president asked for a level of authority, didn't get it all but got a substantial amount. Yes, exactly right, the court recognized that even American citizens unfortunately can act as belligerents against their own country and can be an enemy combatant and detained as such.

  • MARGARET WARNER:

    Now Professor Kmiec staying with you, let's stay with that thread and go to the related issue. We're already talking about executive power but bring in the Cheney energy task force case. Where do you think the court came down there in this separation of powers discussion about the power of the executive branch and the authority?

  • DOUGLAS KMIEC:

    Well, the court had a tendency this term to decide a substantial number of issues, but then to leave the ultimate act to lower courts and to allow them to be the final decision-maker. This was true in the Cheney case. The Cheney case dealt with the vice president's energy task force and whether or not he could maintain the confidence and the confidences that had been expressed in that task force or whether he was obligated by a federal statute to disclose them. The Supreme Court, I think very strongly hinted that the lower courts must give substantial deference to the vice president's interest in maintaining confidentiality.

    The Supreme Court expressed considerable skepticism about the lower court's theory of requiring as a matter of discovery public disclosure. I think this was a very important victory for the Bush administration that came into office wanting to strengthen the powers of the presidency that they had felt had been weakened over the previous eight years.

  • MARGARET WARNER:

    Yet at the same time, Professor Koh, the court did not say that the vice president was completely exempt from discovery.

  • HAROLD HONGJU KOH:

    Well, I think Doug may give a slightly generous reading of these cases for the executive branch. The truth is that the Cheney case was really punted to the lower courts. Two Justices would have foreclosed discovery and two would have permitted it to go forward.

    They just left the question open. They did say it was not a routine discovery case but they didn't say that whatever the executive branch wants goes. I should also point out that they did not say that the burden can be shifted to an enemy combatant in a case or that a case could be heard against an enemy combatant in a military tribunal. Only four justices said that. Two disagreed but contributed to just make a majority go forward. So I think that the executive branch really did take a hit here.

    They were trying to say, we have unfettered discretion and that was rejected. I do think that the Abu Ghraib scandal played into that. The idea that the executive branch alone can be trusted without judicial oversight or congressional examination was something that was much, much less plausible several months after the argument than it was at the time that the original oral arguments were made.

  • MARGARET WARNER:

    Can I move to one other separation of powers argument before we run out of time. And that is this has been the ongoing trend with this court with the federalism cases to shield states from laws enacted by Congress, but the landmark case in that area this term went the other way, did it not?

  • HAROLD HONGJU KOH:

    Yes, you're referring to the Tennessee versus lane which upheld a key portion of the Americans for disabilities act under Section V of the 14th Amendment. That was a very unusual case. It was a compelling set of facts in which someone was prevented from getting access to the courts who was trying to crawl up the stairs to get into the courthouse. It was decided on the 50th anniversary of brown versus the board of education it was a 5-4 decision which said that the law was necessary to redress past unequal treatment. Again Justice O'Connor provided the key vote as she did in so many of these cases this term.

  • MARGARET WARNER:

    Professor Kmiec, why do you think this case in general went against the trend? I know there was one other case last year that also went the other way. But in this case the state was forced to comply with the ADA.

  • DOUGLAS KMIEC:

    Well I think, Margaret, I think what we see here is that this is not an ideologically driven court that has one answer. I think it was unfairly said about the Rehnquist court in years past that anything the states wanted they got. As you correctly allude to, last year the court decided that the states would lose in the context of a gender discrimination case. In this case, I think you can see the justices, including Justice Scalia, rethinking the relationship between federal and state authority and moderating it somewhat. The court here I think has… is at a level where they've been working together for over ten years. They know each other's philosophies and they're now starting to refine and polish previous doctrine. The states don't always win even in the Rehnquist court.

  • MARGARET WARNER:

    Very briefly to you both. As Professor Kmiec said they've been together ten years. Professor Koh, do you see basically the same camps we're familiar with or were there interesting shifting alliances here?

  • HAROLD HONGJU KOH:

    Well, Justice Scalia had a couple of interesting votes particularly in the enemy combatant case. Where he joined an opinion with 5-4 opinions was up. The number of unanimous opinions was down. These were hard cases the court confronted and they had treated them with a good deal of respect and care and while I didn't agree with every outcome, no one ever would, their opinions show that while reasonable minds can differ, they approach their work with seriousness and care.

  • MARGARET WARNER:

    Professor Kmiec, Dean Harold Koh, thank you both.

  • DOUGLAS KMIEC:

    Good to be with you, Margaret.

  • HAROLD HONGJU KOH:

    Thank you.