SCOTUS admits blunder on UCMJ, but says "Nevermind," and shows again how Obama's model judges pull constitutional law from thin air

When the Supreme Court is so wrong, I take small pleasure in being right in predicting that they'll perversely continue being wrong. But I nevertheless claim that credit in my latest guest-post at HughHewitt.com.

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[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

On my own blog, I write a lot about politics, but also a fair amount about law — always with the intention of expressing my opinions in language that any well-educated layman can understand. On July 6, 2008, I wrote at my usual tedious length about the Supreme Court's embarrassing mistake in the case overturning Louisiana's capital sentence for a child rapist, Kennedy v. Louisiana, in which Justice Kennedy, writing for a five-Justice majority (which also included Justices Stevens, Souter, Ginsberg, and Breyer), insisted that neither any other state nor the federal government permitted the death penalty for child rapists. That was a major premise for their holding that "evolving standards of decency" under their "living, breathing" version of the Eighth Amendment no longer permitted Louisiana's death sentence for convicted child rapist Patrick Kennedy. And that statement was absolutely wrong: Congress and the president had recently acted to amend the Uniform Code of Military Justice to permit the death penalty for exactly that crime.

Even the editorial board of the Washington Post had urged the Supreme Court to grant rehearing in the case to address this enormous blunder. Here's what I predicted, however:

There assuredly will be a motion for rehearing filed, and even if there's not, the Court could consider reconsidering the case on its own, sua sponte. But only a naive wanker would expect the Emperor of America, Mr. Justice Anthony Kennedy, or any of the other four Justices who joined his opinion for the majority, to actually change their votes. At most, those five will permit limited supplemental briefing by both sides. There won't be additional oral argument. And in short order, Justice Kennedy will write a short supplemental opinion. It will announce the denial of rehearing. It will try to explain why the laws that America, through its Congress and president, has chosen to apply to its own uniformed sons and daughters are nevertheless absolutely meaningless data points in the SCOTUS' determination of America's "evolving standards of decency."

Today the Supreme Court did exactly what I predicted.

What shocked me about the Supreme Court's blunder was that it demonstrated how little the Supreme Court knew about the Uniform Code of Military Justice. And yet in Boumediene v. Bush, those same five Justices had, just a month earlier, overturned as unconstitutional a provision of a law passed by Congress and signed by the president that restricted the availability of habeas corpus as a remedy to individuals detained at Guantanamo Bay Naval Station as enemy combatants. It did so, in large part, based on the notion that the alternative procedures crafted by Congress and approved by the president in the Military Commissions Act were constitutionally inadequate — even though those provisions were modeled upon, and provided procedural and substantive protections generally comparable to those which govern our military personnel under, the UCMJ.

In a sentence: In June the SCOTUS said UCMJ-based provisions are inadequate; in July the SCOTUS proved that it has no clue what the UCMJ actually says.

Now, I emphatically do not believe that one need be a lawyer to be qualified to be president or vice-president. That's why we've had an Attorney General and a Department of Justice [see update below] since the founding of the Republic. Indeed, the fact that neither John McCain nor Sarah Palin are lawyers themselves is a definite feature — not a bug — of the McCain-Palin ticket!

But both Barack Obama and Joe Biden are indeed lawyers, and Barack Obama frequently reminds us that he's even been a "professor of constitutional law" (which is a slight overstatement, but whatever). He immediately applauded the Boumediene decision:

Taking audience questions in Pennsylvania, Obama praised Thursday's Supreme Court decision to allow detainees at Guantanamo Bay to challenge their imprisonment in federal courts. Enforcing habeas corpus rights, he said, is "the essence of who we are."

"Even when Nazis' atrocities became known in the 1940s, he said, "we still gave them a day in court" at the Nuremberg trials. "That taught the entire world about who we are," he said.

That was spectacularly clueless, and one of the many occasions on which Obama has demonstrated that for all his fine degrees from Columbia and Harvard Law, he's ignorant of world history. First, no one at Nuremberg was permitted to file a habeas corpus petition in the American courts. Second, the Military Commissions Act provides substantially greater procedural and substantive protection than what any of the Nuremberg defendants had.

Moral: A non-lawyer who will seek competent legal advice is far less dangerous than a lawyer who thinks he knows history and the law, but is demonstrably wrong about both. And every one of the SCOTUS justices whom Barack Obama has held up as "models" in the mold he's promised to appoint as president were among the majority who blundered in Kennedy v. Louisiana, and who pull their interpretations of the Constitution out of thin air to match their own sentiments.

Rights for foreigners accused of being terrorists that even our own service personnel don't get. A "living, breathing" Constitution whose answers, my friends, are blowin' in the wind. You do get an indirect vote on whether that's what you want — but you have to cast it through your choices for POTUS/VPOTUS and (even less directly) U.S. Senators. Judicial appointments are just one more issue on which this year's presidential election presents you with a stark, vivid choice.

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UPDATE (Thu Oct 2 @ 2:22 a.m. CST): Proving my point about the dangers of lawyers who are convinced they know history that turns out to be just not quite so, an astute commenter on my own blog — a non-lawyer, in fact! — pointed out that although the Attorney General was indeed part of Washington's first cabinet, the Department of Justice as an institution only dates back to 1870. Mea culpa.

— Beldar