The Separation of Powers: Hamdan v. Rumsfeld - The AntiRoberts

Abstract

The Supreme Court, in a five-to-three decision, resolved Hamdan v. Rumsfeld against the President of the United States and his effort to create a military tribunal system for purposes of trying those who are being detained in Guantanamo Bay, Cuba. Hamdan, in my judgment, is the anti-Roberts. It is the antithesis of judicial humility over a subject matter that by Constitutional plan has been given to the President and Congress. Roberts, of course, can't be blamed. He was recused. It might be supposed that his vote, being only one, would not have changed the outcome. This may formally be true, but it understates the moderating influence his voice may well have had on an opinion that is deeply at odds with the history of the Court in wartime and both the law of the Constitution and statute.