Supreme Court Deals Blow To Bush Administration's Guantánamo Policy And Affirms Individual Right To Bear Arms

June 26, 2008 12:00 am

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Roberts Court Also Issues Important Rulings On The Death Penalty, Voting Rights And Employee Rights

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NEW YORK – The Supreme Court ended its 2007 Term by rejecting a centerpiece of the Bush administration’s crumbling Guantánamo policy for the third time in four years while recognizing, for the first time in American history, an individual right to bear arms under the Second Amendment.

“Neither decision is particularly surprising to anyone who has been reading the signals from the Court,” said Steven R. Shapiro, American Civil Liberties Union National Legal Director. “But both decisions have the potential to transform the nation’s legal and political landscape.”

Statistically, the Court decided even fewer cases than last Term, when it set a modern low. There were also significantly fewer 5-4 decisions. And, unlike last Term, Justice Kennedy was not on the winning side in every 5-4 case.

“In many ways, it was a less doctrinaire year for the Court,” Shapiro said. “On the important cases, however, the Court remains closely divided and Justice Kennedy continues to play a pivotal role.”

Habeas Corpus At Guantánamo

Most notably, Justice Kennedy both cast the deciding fifth vote and wrote the majority opinion in Boumediene v. Bush, which upheld the right of Guantánamo detainees, some of whom have been imprisoned for almost six years, to challenge the basis for their detention by filing habeas corpus petitions in a U.S. federal court.

“Habeas corpus has lasted for 800 years. The fact that it survived at Guantánamo by a single vote is a reason for relief more than a cause for celebration,” Shapiro said.

Because it guarantees judicial review of detention decisions, habeas corpus has been regarded as a cornerstone of liberty and a check against the abuse of executive power since the Magna Carta in 1215. Even before the Bill of Rights, the framers regarded habeas corpus as so essential to the system of checks and balances that they included a provision in the Constitution prohibiting the “suspension” of habeas corpus except in rare and limited circumstances.

Since the first detainees arrived at Guantánamo in 2002, however, the Bush administration has insisted that the Constitution does not apply to Guantánamo and thus the detainees being held there have no right to seek habeas corpus relief. Indeed, the Bush administration chose Guantánamo as a detention site precisely because it thought its actions there would be beyond judicial review.

That argument is gone following the Supreme Court’s decision in Boumediene, and so is the rationale for Guantánamo itself. Noting that the U.S. has exercised total control over Guantánamo for more than a century, Justice Kennedy first held that Guantánamo’s post-9/11 detainees are protected by the constitutional right to habeas corpus, and then ruled that the diluted procedures Congress had put in place were not an adequate substitute for habeas corpus because they did not provide detainees with a meaningful opportunity to challenge their designation as “enemy combatants.”

Finally, Justice Kennedy forcefully responded to the government’s familiar refrain that the preservation of security requires the sacrifice of liberty by writing: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled, and in our system they are reconciled within the framework of the law.”

The decision in Boumediene was announced just as the military commission proceedings of five high profile detainees at Guantánamo were getting underway. The detainees, who have been held in CIA custody for years and subject to torture, were making their first court appearances in cases that could ultimately lead to the death penalty.

The validity of the military commission proceedings was not technically before the Court in Boumediene. “Nevertheless,” Shapiro said, “it is hard to see how any proceedings that permit the use of coerced testimony and deny detainees the basic right to confront witnesses against them by allowing hearsay evidence can survive the constitutional scrutiny that Boumediene requires.”

Despite an apocalyptic dissent from Justice Scalia, Boumediene is consistent with the Court’s other Guantánamo decisions. In various ways, all have stressed the need to preserve the rule of law in the so-called “war on terror.” The government has yet to win a single one of those legal battles in the Supreme Court. By contrast, the gun control decision in D.C. v. Heller marks a dramatic departure from the Court’s longstanding view on the meaning of the Second Amendment.

The Right To Bear Arms

The Second Amendment has not been the subject of much Supreme Court discussion through the years. To the extent it has been discussed, the Court has described the Second Amendment as designed to protect the ability of the states to preserve their own sovereignty against a new and potentially overreaching national government. Based on that understanding, the Court has historically construed the Second Amendment as a collective right connected to the concept of a “well-regulated militia” rather than an individual right to possess guns for private purposes.

In Heller, the Court reinterpreted the Second Amendment as a source of individual rights. Washington D.C.’s gun control law, which bans the private possession of handguns and was widely considered the most restrictive such law in the country, became a victim of that reinterpretation.

The Court was careful to note that the right to bear arms is not absolute and can be subject to reasonable regulation. Yet, by concluding that D.C.’s gun control law was unreasonable and thus invalid, the Court placed a constitutional limit on gun control legislation that had not existed prior to its decision in Heller. It is too early to know how much of a constitutional straitjacket the new rule will create.

Voting Rights

The Court’s willingness to recognize a new right to bear arms was not matched by a willingness to enforce the fundamental right to vote. Instead, in Crawford v. Marion County Election Board, an ACLU case, the Court upheld the facial validity of an Indiana law that requires voters to produce a government-issued photo ID in order to vote, even if they have been voting for many years without incident. By conservative estimates, there are at least 43,000 voters in Indiana that lack the required ID, and likely many more. Those voters are disproportionately poor, minority, elderly, and persons with disabilities.

In an attempt to preserve their right to vote, the Indiana law was challenged before it went into effect. As a result, the trial record in Crawford lacked stories about voters who were actually denied the right to vote. Seizing on that fact, the Court concluded that the actual burden on voters was speculative. At the same time, it accepted the state’s asserted interest in deterring voter impersonation at the polls, even though such fraud was already illegal under Indiana law and no one had ever been prosecuted for it.

The controlling opinion in the Court’s 6-3 decision was written by Justice Stevens. The best that can be said is that it somewhat mitigated the damage by leaving the door open to future challenges on behalf of voters who are in fact deprived of their right to vote because of the law.

The Death Penalty

The Court adopted a similar wait-and-see attitude when it rejected a challenge to Kentucky’s lethal injection protocol in Baze v. Rees. Kentucky’s protocol is no different than the protocol used by the federal government and every other state that imposes the death penalty. Prison officials first administer an anesthetic, then a paralytic and then a drug that causes cardiac arrest. Medical personnel – doctors and nurses – are prohibited from participating in the procedure by professional ethics. Not surprisingly given the lack of trained medical personnel, autopsy results show that some executions have been botched. Worse still, if the anesthesia is not properly administered, the paralytic can prevent anyone from realizing a problem has occurred that, if not corrected, will cause the inmate to experience excruciating pain from the cardiac arrest caused by the final drug.

Kentucky had conducted only one prior execution using lethal injection and there was no evidence of any mishap. The Court refused to look at the record nationwide or the fact that 23 states, including Kentucky, prohibit veterinarians from using the three-drug protocol to euthanize household pets because it risks unnecessary pain. On the other hand, the Court did not foreclose litigation against other states if death row inmates could show a documented history of mistakes or inadequately trained staff.

Justice Stevens concurred in the result in Baze because of concerns about the evidence. Far more significantly, however, he announced that he was now prepared to declare the death penalty unconstitutional under all circumstances in an appropriate case, thus becoming the first abolitionist on the Court since Justice Blackmun’s retirement in 1994.

Kennedy v. Louisiana was the other major death penalty decision this Term. Thirty years ago, the Court had ruled that a defendant could not be put to death for raping an adult woman but left open the question of child rape. In Kennedy, the Court answered that question by reaffirming that capital punishment is reserved for acts of murder. Once more, Justice Kennedy cast the deciding vote and wrote the majority opinion. After noting that no one has been executed for rape since 1964 and only two inmates on death row are now facing execution for raping a child (both in Louisiana), he observed that “[e]volving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty…”

Employee Rights

In perhaps the Term’s most unexpected development, the Court issued a series of pro-employee decisions only one year after it was widely criticized for sharply curtailing the ability of women to recover for pay discrimination. In CBOCS West, Inc. v. Humphries, the Court ruled that an employee who protests racial discrimination on the job is protected against retaliation by a Civil Rights era statute that prohibits discrimination in the “mak[ing] and enforc[ing] of contracts.” In Gomez-Perez v. Potter, the Court ruled that federal employees, like private employees, are protected against retaliation for filing age discrimination claim under the Age Discrimination in Employment Act (ADEA). And, in Meacham v. Knolls Atomic Power Laboratory, the Court ruled that an employer sued under the ADEA has the burden of proving that the challenged employment decision was based on “reasonable factors other than age.”

Campaign Finance Reform

Finally, in Davis v. Federal Election Commission, the Roberts Court again showed its skepticism toward campaign finance regulation by striking down the so-called “Millionaire’s Amendment” adopted by Congress in 2004. Under the provision, federal candidates facing a self-financed opponent who contributes more than $350,000 to his or her own campaign are permitted to raise funds at triple the normal contribution limits ($6,900 rather than $2,300). Congress viewed the amendment as an effort to level the playing field. The Court concluded it was an effort to discourage wealthy candidates from spending money on their own candidacy – a right that the Court had previously said was protected by the Constitution – and thus struck down the amendment as a violation of the First Amendment.


“We are still learning the personality of the Roberts Court,” Shapiro said. “Last Term, the Court launched an aggressive assault on core principles affecting race and abortion. This Term, the Court generally spoke with a softer voice. Only time will tell how much that difference matters. Even when speaking softly, however, the Court’s instincts remain fundamentally conservative on most issues.”

A summary of all of the Court’s civil liberties-related cases from this Term is online in PDF format at:

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