Mark in Mexico on Hamdan v. Rumsfeld

By popular demand, I am forced to comment on the Supreme Court's decision in Hamdan v. Rumsfeld. I hated it. That being said, I also am fully aware that I am in no position to argue about it one way or another. My general observations are these:

1. Chief Justice Roberts was not a part of the decision. He was forced to recuse himself since the case before the Supreme Court was an appeal of his ruling as the appellate court judge. Had he participated, at worst the decisions would have been 5-4, and possibly might even have gone 5-4 the other way had he been able to convince one of the ultimate majority over to his way of thinking.

Now, when the Supremes issue a 5-4 ruling that is considered conservative in nature, tens of thousands of liberal-lefties scream

"NARROWLY DIVIDED COURT!!!!"

When, however, the 5-4 decision (which is what this really was) is considered liberal in nature, especially when it goes against the Bush administration, the same horde of liberal-lefties scream,

"BUSH (or fill in blank) BLASTED BY SUPREME COURT!!!!"

That is, not to put too fine a point on it, a load of crap.

2. The experienced and educated (and there are very few) commenters seem to remark on two points: A. The decision seems more important for what it did not say than for what it did say, and: B. Not all of the majority justices joined the rest in all points of the majority's written decision, raising the question of a 4-4 tie in those parts of the decision which further raises the question of whether that part of the majority's decision carries the force of law (Got that? . . . Good, cause I don't). To further shock and awe you, not all of the dissenting justices agreed in all parts of the dissent. If these experienced and educated constitutional lawyers don't know, then how am I or 99.9999% of all the other reporters, pundits, columnists and editorial writers supposed to know? Answer: We're not.

3. Of the vast trove of opinions and punditry and editorials and columns, ad infinitum, ad nauseam swirling around the TV news channels, the print media and the blogosphere, 99.9999% of those columnists, opinion writers, editorialists, pundits and bloggers, on both the left and the right, don't know what the hell they're talking about, including yours truly. Still, they have a right to those opinions.

The problem here is finding someone who actually has at least a vague idea of what really happened in Hamdan v. Rumsfeld and what it all means. So, one must skate around trying to find the not-too-biased, educated-in-law and experienced-in-Constitutional-law "expert(s)" for an educated opinion/guess as to what the heck happened. A kind of a "Who Do You Trust" exercise.

Here are some places that you can go and read what they say. You can check out their resumes so that you may have some idea whether they know of what they speak.

Mark Moller at Cato@Liberty, writing Hamdan v. Rumsfeld: A (Tentative) Guide for the Perplexed


The SCOTUSblog, where different contributors to the blog don't agree with one another.

The Volokh Conspiracy with several contributors, all law professors at UCLA, of whom Professor Orin Kerr is not only a contributor, but also has his own blog.

These do not constitute a plethora of learned opinion because there is no plethora extant. For the remaining 99.9999% of the dummies, such as your truly, I like Professor Bainbridge's observation on one of them.

As for me, the Bull Moose (who disagrees with the court's findings) probably says it best:

That was the response the Moose had to the Supreme Court's Hamdan decision. It was quite remarkable. In America, extraordinary rights are accorded even to our enemies who would use all means necessary to kill us and our families. How many countries in the history of civilization would give these rights to killers who refuse to abide by the rules of war and who don't exactly adhere to international treaties?

(and)

We are once again reminded that our nation has no equal in human history in our commitment to human decency and law. And whether one believes that the Court ruling was right or wrong, we can all concur that American exceptionalism was once again affirmed.

What a country! God Bless America.

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