Misreporting the Court

Sometimes reporters ought to keep their uninformed opinions to themselves. Such is the case of Mark Sherman of the AP who clearly has never read a copy of the US Constitution, to say nothing of the history of the Supreme Court. He writes:

For most of the term, Supreme Court justices showed remarkable restraint. They displayed broad agreement even in some volatile areas and refrained from angry dissents.

Then they decided the tough cases.

The court, in its three most important cases, declared a constitutional right to have guns at home for self-defense, granted some constitutional protections to foreign prisoners at Guantanamo Bay and outlawed the death penalty for people who rape children.

Not only did the familiar ideological divisions return in these cases and several others, but the justices took turns hurling charges of "judicial activism" and worse at each other.

Giving rights to the detainees "will almost certainly cause more Americans to be killed," Justice Antonin Scalia said in a scathing dissent he read from the bench.

No one threw that line back at Scalia in the guns case. But Justice John Paul Stevens, also summarizing his dissent in court, said of Scalia's majority opinion on gun rights that "adherence to a policy of judicial restraint by this court is far wiser than the bold decision it announced today."

Those were among nine 5-4 decisions handed down in the past two weeks. Until then, there had been only two all term, leading a former Supreme Court clerk, Robert Gordon, to remark that the era of good feelings at the court lasted about a month.

Let's stick to the Heller case for a moment. The Court reaffirmed that the US Bill of Rights Second Amendment means exactly what it says - that there is an individual right to bear arms. It didn't create a new right, but reaffirmed a right already enshrined in the Bill of Rights for 232 years. Far from judicial activism, this was judicial restraint in action. It was Stevens and Breyer's dissent in Heller that was judicial activism writ large since they were forcing a rewrite of the Bill of Rights to take away an individual's right to bear arms and subsume it to government control - an outright ban of firearms in the District of Columbia. The dissent in Heller was essentially attempting to rewrite the Second Amendment to distort it beyond all recognition.

My take on Boumediene v. Bush (the detainee case) can be found here. The majority there imposed rights in enemies detained on the battlefield who are out of uniform that have never been granted in the history of the nation - access to the courts that not even POWs are granted. The can of worms opened up by this decision is precisely one that Scalia addresses.

Most cases decided by the Supreme Court do not provoke visceral reactions, mainly because they argue finer points of established laws or more obscure areas of law. It is a handful of cases each year that results in overheated rhetoric from all sides.

Expect to see more cases such as Heller or Boumediene simply because those issues are coming to the forefront and the respective sides in each of those issues press forward with additional cases to shape how the law is applied.