The Winger Response To Hamdan

Ken AshfordRight Wing Punditry/Idiocy, Supreme Court, War on Terrorism/TortureLeave a Comment

Entirely predictable.

They’re getting all outraged and pulling the "activist judges" crap.  Here, for example, is the editorial at NRO:

As yesterday’s decision again demonstrates, this Court would rather impose its preferences on us than simply follow the law. We should find this unacceptable in any case. But when the consequences of the Court’s arrogance rise to the level of life and death, there is only one word to describe what it is: an outrage.

And again at Real Clear Politics:

Justice Breyer’s concurrence says that Congress didn’t give the President a blank check to fight the war on terror. But the Constitution also doesn’t give the justices a blank check to write the law.

Unfortunately, the "courts gone wild" knee-jerk reaction doesn’t make any sense with respect to Hamdan.  The Supreme Court did not write any law or expand its own power.  The decision acknowledges the role of Congress in regulating military tribunals.  The President, the court said, has to comply with Congress.

But, as I said, this sort of "judicial activism" parroting is to be expected.  Greenwald opines:

For all their talk of judicial activism, Bush followers reveal themselves as the ultimate judicial activists whenever they discuss judicial decisions. The crux of the decision yesterday turned on relatively obscure and legalistic questions involving the legal effects of Congressional enactment of the UCMJ, rules of statutory construction as applied to Common Article 3, and the retroactivity of jurisdiction-stripping statutes. Among most Bush followers purporting to condemn this decision as an act of judicial tyranny, you won’t find any discussion of those legal issues, because they know nothing about them and don’t care about them.

All they know is that the Court reached a result they don’t like, and worse, it is a result that contradicted the President’s will, so it is, by definition, the by-product of pro-terrorist judicial activism. Within hours — and certainly without even having the time to read the opinions — Bush followers who never thought about the UCMJ or statutory construction issues concerning Article 3 were able instantaneously to condemn this decision as the by-product of judicial overreach. As always, "judicial activism" has no meaning other than "the reaching of a result by a court which those who wield the term dislike."