Say this for the Roberts court: it knows how to pull off a surprise ending. The day after limiting hopes for school integration and mere hours from its summer recess, the U.S. Supreme Court agreed to review two cases involving detainees at Guantánamo Bay, Cuba--cases it had rejected three months earlier.
It's the first time in roughly 60 years that the court has changed its mind in this way. The cases involve two groups of Guantánamo prisoners who argue for the right to fight their detentions before a federal judge. They asked the court to reconsider its refusal in April to hear their claim. The Bush Administration said the Justices should decline the request because Congress had stripped the prisoners of their right to habeas corpus--the right to claim in court that they are illegally held--and the existing hearings for reviewing their status are legally sound. But the prisoners' lawyers said the secretive hearings are shams and are skewed against their clients.
The court, as usual, said little, and a rarefied few know its motives. But recent news may hold clues to its change of heart. On June 21, Democratic Representative Henry Waxman revealed that Vice President Dick Cheney has been insisting he is a member of the Legislative Branch and so is exempt from routine review of how the Executive Branch handles secrets. A week later, the White House said Executive privilege excuses it from coughing up papers or testimony to Congress about fired U.S. Attorneys.
This further evidence of the Administration's chronic opacity might alert anyone, including Supreme Court Justices, to take a closer look at what goes on behind the walls of Guantánamo. But it's a third event that may have tipped the Justices' decision. On June 26 the CIA released the "family jewels," a compendium of love nests bugged, lock pickers hired and assassinations botched four decades ago. Though surely not the agency's hope, the public reaction seemed along the lines of, Wow, the stuff they did during the cold war was pretty mild compared with today's tactics. Squirreling away a KGB defector for tough questioning may have chilled spines in 1964, but it draws yawns in the era of renditions to secret prisons abroad.
We know from the Justices' first encounter with detainees at Guantánamo Bay that abuses of power worry this court. On April 28, 2004, the case of Yaser Esam Hamdi, an American citizen captured in Afghanistan, went before the Justices. During oral arguments, the court seemed cool to Hamdi's claim that the military should allow him to argue before a "neutral decision maker" that he is not an enemy combatant. But hours later, photographs came to light of inmates being abused at Abu Ghraib prison in Iraq. Then on June 7 the Wall Street Journal revealed a 2003 legal memo by Administration lawyers arguing that the President isn't bound by international or federal laws prohibiting torture. On June 28 the court issued its decision in the case: "a state of war is not a blank check for the president," it declared, ruling 8 to 1 in Hamdi's favor.
Whatever its reasons for agreeing to hear the Guantánamo Bay cases, the court has shown independence in deciding how much legal cover to give the Bush Administration in fighting the war on terrorism. A popular notion holds that adding Chief Justice John Roberts and Justice Samuel Alito to rock-ribbed Justices Antonin Scalia and Clarence Thomas and often conservative Justice Anthony Kennedy made this the court that President George W. Bush always wanted. Yet Scalia broke with the President in Hamdi by arguing that American citizens have the right to trial in U.S. courts. Kennedy, in Hamdi and other cases, has opposed the Administration's strident claims to power in a time of war. Even Roberts and Alito have shown a careful and measured approach to issues, often taking the conservative side but resisting fundamental revisions to constitutional law.
All the talk of a court moving hell-bent to the right may ultimately prove correct. But when it comes to checking the President's power, the big surprise of this term may be that this is not George Bush's court.