Remembering Hamdan

When Hamdan v. Rumsfeld was decided in late June of this year, it was heralded as a landmark case. Not only did it appear to validate the role of international law in constitutional decisions, it also seemed to vindicate those who sought to impose limits on a runaway president. But as one comment on Hamdan, which we recently came across, observes, the most notable thing about the decision is how unmemorable it is. The author, Jay Dratler of University of Akron School of Law, points out that "there is a time for technical analysis and a time for the wisdom of the ages. Of the latter I saw very little in Hamdan." This in spite of the fact that the concurring and dissenting opinions in Hamdan are a total of eight times longer than the entire Constitution.

Dratler has a conservative bent, thus he is worried about the decline of an august institution, its traditions, and the bulwark the Court provided against the depredations of democracy. Nonetheless, his concerns are apposite. He is not merely worried that courts write long opinions instead of short, crisp ones. The point is that, in Hamdan, the Court seems to have substituted verbiage and detail for the opportunity to make a historic statement. In so doing, the Court undermined itself, because it failed to perform that special function of reflecting on our highest principles - a function that grants it a peculiar kind of legitimacy. In fact, the opinions in Hamdan do the opposite of reflecting in clear, intelligent prose about the Constitution for the sake of public education. In Dratler's words, "As a whole, the Hamdan Court's output is hard sailing even for those, like myself, who have been trained for decades in the law. It is virtually impenetrable for people who have not incurred the expense of legal training." Awash in legalities and technicalities, the decision is written "as if the Justices were high priests of some obscure religion," not educated servants of the public.

Dratler is mistaken to have believed that the judges ever performed a particularly democratic function. Many of their most eloquent and clear opinions have justified transparently conservative decisions whose main function was to educate the public in just how undemocratic its government was; and to a degree, it has always functioned as a body of high priests in robes sitting in judgment on society. Dratler is nonetheless right that the Court seems actively to have avoided making any historic statements. The reasons for this are somewhat hard to discern. The main one is likely that the Court was recitent to act as an opposition in the absence of any other branch or party performing a checking function. Where Dratler takes this as a sign of decline, and an abdication of responsibility, we take it as a different kind of lesson on the limits of the Court. The Supreme Court is often vested with great expectations, especially in periods when political alternatives seem depleted or weakened. But it is precisely in such situations when the Court is least likely to stick its neck out. In fact, it is always something of a conservative institution. While there is some sense in demanding that the Court live up to its own standard, as Dratler does, there is more sense in freeing ourselves from the idea that the Court should play the role of interpreting our basic commitments to us in the first place.