The '06 Stakes Just Got Raised

The narrow margin of the U.S. Supreme Court’s rebuke to George W. Bush on military tribunals highlights the stakes on the table for the November 2006 congressional elections – nothing short of the survival of a meaningful constitutional system in the United States.

The majority opinion, which stopped Bush from proceeding with a kangaroo court that stripped Guantanamo Bay detainees of basic legal protections and mocked the Geneva Conventions, carried a profound secondary message – that the Court was not prepared to endorse Bush’s vision of his “war powers” as limitless and beyond challenge.

But it was equally noteworthy that only five of the nine justices believed that the rule of law and constitutional limits on Bush’s powers should prevail. Four justices – Antonin Scalia, Clarence Thomas, Samuel Alito and John Roberts – have made clear that they are prepared to rubber-stamp any judgment that Bush makes.

In dissenting opinions on the tribunal case, Scalia, Thomas and Alito embraced legal arguments that bowed before Bush’s imperial presidency. Chief Justice Roberts would surely have joined them, except that he had already ruled in Bush’s favor in the case while sitting on the U.S. Appeals Court and thus was forced to recuse himself.

The one-vote fragility of the Supreme Court’s embrace of constitutional principles over one-man rule was further underscored by the fact that the landmark ruling was written by Justice John Paul Stevens, a decorated World War II veteran who is now 86. Another justice, Ruth Bader Ginsburg, is known to have battled health problems.

It is a strong possibility that if the Republicans retain control of the U.S. Congress in the November 2006 elections, Bush will get to fill at least one more Supreme Court vacancy with the likes of Scalia, Thomas, Alito and Roberts. Then, the court’s majority will flip in the opposite direction, granting Bush the authoritarian powers he so covets.

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