No New Jurisprudence in Enemy Combatant Decision

While much has been made of the decision of the 4th Circuit Court of Appeals to curtail powers of the president to declare civilians "enemy combatants" and hold them indefinitely without trial, the Court of Appeals appears to only affirm what the USSC decided in Hamdi v. Rumsfeld (2004). Justice O'Connor wrote:

While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here. Cf. Korematsu v. United States, 323 U. S. 214, 233–234 (1944) (Murphy, J., dissenting) ("[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled"); Sterling v. Constantin, 287 U. S. 378, 401 (1932) ("What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions").

In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.

Indeed, the 4th Circuit's decision (oddly enough one which was overturned in the Hamdi case) falls in line with the Court's reasoning approximately 3 years ago. Indefinite detention of so-called "enemy combatants" is unconstitutional and unsound use of governmental power.

Wrong Issue Addressed in Caretaker Agency Case

Today's decision by the USSC to uphold the Department of Labor's interpretation of a 1974 Fair Labor Standards Amendment lacks the right frame of reference. The Department's interpretation of the Fair Standards Amendment is that it exempted caretakers contracted in the home from minimum wage and maximum hour rules of the Fair Labor Standards Act of 1938. What this essentially means is that this subset of caretakers are subject to the whims of the labor agency contracting them. Caretakers can be paid anything and can be required to work as many hours, without being paid overtime by the contracting agency.

A caretaker who was contracted to the home sued her employment agency for refusing to pay her for her overtime work. This raises, what should have been the appropriate frame for viewing the case: due process of law. Although this was not the question before the Court when they decided this case, the interpretation of the law comes into conflict with this basic right guaranteed by the 14th Amendment. Section 1 of the 14th Amendment reads:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The caretaker lost her compensation for the hours she worked overtime and thus was deprived of property that was rightfully hers. While the Court finds that the process of creating the law was within reason and that the Department of Labor could interpret the FLSA amendment in such a way as to exclude caretakers from the regulations imposed by the FLSA, the law itself should not be constitutionally sound. It is really that question which the USSC failed to answer in its opinion and should have been the framing of the issue in the case.

Life Appointment of Justices

Life appointment of the justices sitting on the USSC--as long as they behave well--has raised many concerns. The concerns range from certain presidents having more control over the political ideology of the Court to justices staying on the job far after their health has compromised their capacity to do the job.

The justice which currently comes to mind is CJ Rehnquist. Although he was clearly battling (and losing the battle) against thyroid cancer he remained steadfast in his desire to stay on the Court till his dying day. Concerns over the health and well-being of the justice have prompted some scholars such as James E. DiTullio and John B. Schochet to call for a constitutional amendment: give justices 18 year non-renewable terms on the Court instead of life appointment.

In their article: Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Non-renewable Eighteen Year Terms argue that this amendment will be beneficial since it will reduce the influence of one president on the Court, the influence of age on the choice of nominees (who may lack the appropriate experience if too young) and the desire of justices to stay on the Court past their prime.

National Security & "Don't Ask, Don't Tell"

One of the principle reasons why the U.S. government argues that the "Don't ask, Don't tell" policy of the military is valid is that it essentially helps national security. The Department of Defense Directive 1332 from January 1981 states:

"Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the ability of the armed forces to maintain discipline, good order, and morale; to foster mutual trust and confidence among service members; to insure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of service members who frequently must live and work in close conditions affording minimal privacy; to recruit and retain members of the armed forces; to maintain the public acceptability of military service; and to prevent breaches of security." (emphasis added)

Since people in the armed services will not be able to function and live and work with those of different sexual orientations, the government bans homosexuals from serving in the armed forces. The government prioritizes the need to raise and support armies for national security over the desire of gay people to serve in the armed forces. The government views the situation in a dichotomous fashion: either have all straight people (or perceived to be straight people) serve in the army or all gay people. Since gay people a minority of the population and not all gay people want to serve in the armed forces, the government reasonably concludes that it must accommodate those straight people and offer them the most comfortable working conditions to have the largest and strongest army possible.

An editorial today in the NY Times, however, refutes this notion that the "Don't ask, Don't tell" policy promotes a strong army and fosters national security. In perhaps the clearest and most cogent response to the "Don't ask, don't tell" policy, Mr. Stephen Benjamin writes in a letter to the editor that firing gay military men and women who could be helping the U.S. uncover vital intelligence is indeed hurtful to national security. There is no compelling governmental interest in trying to discriminate against gay people. Mr. Benjamin says:

“Don’t ask, don’t tell” does nothing but deprive the military of talent it needs and invade the privacy of gay service members just trying to do their jobs and live their lives. Political and military leaders who support the current law may believe that homosexual soldiers threaten unit cohesion and military readiness, but the real damage is caused by denying enlistment to patriotic Americans and wrenching qualified individuals out of effective military units. This does not serve the military or the nation well.

Consider: more than 58 Arabic linguists have been kicked out since “don’t ask, don’t tell” was instituted. How much valuable intelligence could those men and women be providing today to troops in harm’s way?

In addition to those translators, 11,000 other service members have been ousted since the “don’t ask, don’t tell” policy was passed by Congress in 1993. Many held critical jobs in intelligence, medicine and counterterrorism. An untold number of closeted gay military members don’t re-enlist because of the pressure the law puts on them. This is the real cost of the ban — and, with our military so overcommitted and undermanned, it’s too high to pay.

In response to difficult recruiting prospects, the Army has already taken a number of steps, lengthening soldiers’ deployments to 15 months from 12, enlisting felons and extending the age limit to 42. Why then won’t Congress pass a bill like the Military Readiness Enhancement Act, which would repeal “don’t ask, don’t tell”? The bipartisan bill, by some analysts’ estimates, could add more than 41,000 soldiers — all gay, of course.

The USSC has refused to rule on the policy, perhaps avoiding being at the center of a storm of controversy and political unrest. As of today, more than 80% of Americans believe that gay people should be allowed to serve openly in the military.

Can Roberts Continue to Forge Consensus Among the Justices?

CJ John Roberts, at last year's Georgetown Law Center commencement ceremonies, said that unanimous opinions are something for which the Court should strive. They "promote clarity and guidance for the lawyers and for the lower courts trying to figure out what the Supreme Court meant," Roberts said. At the time of his commencement address, the Roberts Court had issued 31 unanimous opinions out of 46 total--a record for the modern USSC according to CNN.com.

Yet, this term reflects a different type of demeanor on the Roberts Court. Already three justices have read dissents aloud from the bench. This technique is used rather rarely and signals a growing discomfort among some justices with what may be a shifting ideology on the Court. Stevens read aloud his dissent in a case regarding juror selection and Ginsburg read aloud her dissents in two cases: one dealing with abortion and the other pay equity among men and women.

The Court must still issue two opinions on rather controversial issues: race and freedom of expression. It will be interesting to see if they can reach some common ground. They have done so before in rather controversial cases such as Brown v. Board of Education (1954) and in a more recent case dealing with gay rights, Rumsfeld v. FAIR (2006).