The Hidden Supreme Court


On April 28, the Supreme Court of the United States will hear oral arguments in two cases that New York Times reporter David Stout noted are likely to result in rulings of “profound importance, drawing the lines between the powers of courts and the administration and, perhaps, affecting the civil liberties of Americans in ways not yet imagined.” (Emphasis added.)

The justices will hear the cases of two American citizens, Yaser Esam Hamdi and Jose Padilla, who have been held as “enemy combatants” in Defense Department prisons on American soil indefinitely, incommunicado, without charges, and without the continual Sixth Amendment guarantee of access to a lawyer.

Bush’s solicitor general, Theodore Olson, had tried for months to persuade the high court to not even hear these cases, insisting that “the Constitution leaves these core political questions to the president as commander-in-chief. . . . The courts have no jurisdiction . . . to evaluate or second-guess the conduct of the president and the military.”

It was George W. Bush, without going to the courts or to Congress, who, by himself, decided that Hamdi and Padilla, though American citizens, were entitled to none of the fundamental due process rights in the Constitution. No previous president has done this.

If the Supreme Court agrees with George W. Bush—says Judge Barrington Parker Jr. of the Second Circuit Court of Appeals—”we would be effecting a sea change in the constitutional life of this country.” (Emphasis added.)

The third case to be argued before the high court, on April 20, is about whether the noncitizens, our alleged “enemies,” imprisoned by us indefinitely at Guantánamo, Cuba, have any recourse to American civilian courts to rescue them from the legal black hole that Bush’s team has put them in. In that hole, even if they are acquitted by military tribunals under rules already rigged against defendants, they can still be kept in prison.

To prevent Americans, and the rest of the world, from seeing firsthand reports from international human rights groups as to the fairness of the military tribunals at Guantánamo, Brigadier General Thomas Hemingway, a leading adviser in the Office of Military Commissions, sent this letter to Amnesty International, Human Rights Watch, and Human Rights First (formerly the Lawyers Committee for Human Rights)—as reported by Neil Lewis well inside the February 24 New York Times:

“It is expected that limited courtroom seating and other logistical issues will preclude attendance” by these human rights organizations. There will be seats for the news media, but not many reporters have the specialized knowledge to compare the Bush rules for defendants with the Geneva Conventions and other international treaties this country has signed.

But limiting this coverage of the military tribunals, though sneaky, is not as contemptuous of Americans’ vaunted “right to know” as the Supreme Court’s absolute refusal to allow television cameras in the courtroom during the April 28 oral arguments, or any other courtroom at any time.

This historic event concerns not only American citizens Hamdi and Padilla but also any president’s power to call any of us “enemy combatants” and put us away indefinitely. Attorney General John Ashcroft, speaking for the Bush administration, has said that even American streets are “combat zones” in the war on terrorism, allowing American citizens to be busted right here. Jose Padilla was picked up at Chicago’s O’Hare Airport.

Of all American institutions, the Supreme Court is the most distant from the rest of us. The late justice William Brennan told me he wanted its oral arguments open to television because he felt strongly that most Americans had little sense of how this body—which makes decisions affecting millions of us—actually arrives at those decisions.

Brennan pointed out that with few exceptions, most newspapers do not cover the court’s work in depth, and both broadcast and cable television are of even less use. The Internet is limited and uneven.

Seeing the justices during oral arguments—where they are often actually trying to persuade each other in the guise of asking questions of the lawyers before them—provides, as I can attest, insight into their ways of reasoning, their temperament, and their biases. Incredibly, the cold transcripts of these oral arguments—which few Americans ask to see in printed form or on the Internet—do not give the names of the justices asking the questions. It’s as if they were wearing masks.

The late Harry Blackmun was the author of the Court’s decision in Roe v. Wade, which brought him thousands of fiercely denunciatory letters—and a rock thrown through the window of his Washington apartment.

Yet Justice Blackmun took ironic delight, cloaked in anonymity, in joining the outskirts of a crowd of demonstrators near the Supreme Court who were lustily denouncing him for securing the right to abortion.

One morning, I was in Justice Brennan’s chamber shortly after a 1990 survey by the National Law Journal and Lexis that included a question as to how many Americans even knew the names of all the justices. Only 3 percent knew Brennan. (Fifty-nine percent couldn’t name a single justice.)

Chuckling, Brennan reminded me that only 2 percent knew the name of Harry Blackmun. How much do you know about the nine current justices—how and why they got on the Court and their records on civil liberties, civil rights, life and death?

Justice David Souter has said that cameras will come into the Supreme Court only over his dead body. Damn it, it’s not his Court. It’s our Court.

If you want to find out what happens on April 28, your best guide is Linda Greenhouse in The New York Times, who Justice Brennan told me was the most reliable of journalists covering the Court.