Ellington

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Despite the glorification of judges and lawyers on television, in movies and within popular culture, the mission of our courts is simply to enact the American people's will in our laws. It may be called the "Supreme" Court, but the framers of our Constitution intended that the American people and their elected representatives have the supreme say.

That's right. You, a U.S. citizen, and your elected representatives make America's laws, laws which judges are tasked simply to interpret. The Supreme Court has gotten into the disturbing trend of stepping outside the realm of interpreting our nation's laws. Last year they decided to delve into economic development, saying the government can take your land if private business wants it, as they did in the eminent domain case. More recently, they have decided to dabble in the business of national security.

Justice Antonin Scalia plainly stated that the court appeared almost intent in rushing "headlong to meet" this conflict over Guantanamo, even though the court normally tries to avoid such clashes with the President's war powers. This suggests that some justices may see this as a deliberate showdown with President Bush and the majority in Congress. As one of my Senate colleagues – Lindsey Graham of South Carolina, himself a reserve military judge – pointed out, the court stretched the law's wording and made "legal contortions" to reach a "predetermined result."

The Supreme Court's decision that our government can't use planned military commissions to try terrorists is the most recent example of an arrogant court that's forgotten its place. I'm confident that Americans can correct our courts, acting through their representatives in Congress. We'll spell out exactly what the administration and courts can do, rendering this ruling without jurisdiction and meaningless.

In fact, the three dissenting justices in this case seem to be imploring Congress to do exactly that. Justice Scalia said that by ruling that detainees at Guantanamo, some of whom are personal assistants to Osama Bin Laden, are subject to the Geneva Conventions and U.S. law, the court has "for the first time in history" decided to bring the judicial branch "into direct conflict with the Executive (the President) in an area where the Executive's competence is maximal and ours is virtually nonexistent."

In other words, Justice Scalia said the court was outside its power and expertise. Congress had already authorized the President to do what he believes is necessary to protect Americans from further terrorist attacks. We did that when we agreed to use military force against terrorists in Afghanistan and later Iraq. Therefore, Supreme Court justices must defer to Congress and the President in these matters. The justices do not receive secret intelligence on America's enemies as do Congress and the President. They're out of bounds ruling on this issue.

Another dissenter, Justice Clarence Thomas, echoed Scalia, saying the court's "willingness to second guess the Executive's judgements in this context, based upon little more than its unsupported assertions, constitutes an unprecedented departure from the traditionally limited role of the courts with respect to war."

Folks, the terrorists at Guantanamo Bay are not Boy Scouts, and they're not stupid. They're surely laughing right now at these rulings, watching our courts throw common sense out the window just to score political points and engage in legalistic turf battles. The terrorists are biding their time, hoping to one day have another chance to kill Americans, a chance to which our courts seem alarmingly indifferent. But, the good news is that our courts and its judges are not the final arbitrators. They can always be corrected by the American people, no matter how supreme some of them may feel. (7/7/06)
Senator Lott welcomes any questions or comments about this column. Write to: U.S. Senator Trent Lott, 487 Russell Senate Office Building, Washington, D.C. 20510 (Attn: Press Office)

Previous Comments

ID

141224

Comment

Y'know, I'm probably a minority in the state, but that's some scary shit.

Author

Pilgrim

Date

2006-07-07T16:30:15-06:00

ID

141225

Comment

Folks, the terrorists at Guantanamo Bay are not Boy Scouts, and they’re not stupid. Isn't there an issue of knowing for sure which ones are actually "terrorists"? Couldn't one apply this logic to all horrible criminals? To twist the conservative mantra about laws such as those against hate crime a bit, why aren't the lives of the victims of criminals who do get fair trials and representation as important as the lives of the victims of accused terrorists? By this logic, why do we have innocent-until-proven-guilty constitutional protections in the first place? Aren't all the criminals just laughing as us rubes who are concerned with such things?

Author

DonnaLadd

Date

2006-07-07T16:40:30-06:00

ID

141226

Comment

I found a very good op-ed piece in the WSJ Opinions page the other day. I'm not sure if Lott's worked it out in his mind like these two have, but I like their explanition of it much better. It's less a setback than Lott says.

Author

Ironghost

Date

2006-07-07T17:19:11-06:00

ID

141227

Comment

I painstakingly reviewed and summarized this 185-page ruling, and Lott's interpretation of Scalia's dissent is so dimbulbish that it's an embarrassment to the state. The most disturbing thing about this article for me is Lott's comment that Thomas "echoed" Scalia; their dissents were actually based on entirely different arguments, and (for the first time in my memory) Thomas' was the far more exhaustive, running to 49 pages. (The majority ruling ran to 73. The collected opinions were 185 pages.) This was the first dissent Thomas had ever read aloud from the bench, and it was a damned good dissent. Scalia's was pretty good, too. There were no hacks in this case. Everyone did a fine job. Except Trent Lott, whose understanding of the ruling, the concurrences (and this becomes very important--read my summary of Breyer's), and the dissents is flawed, to say the least. Lott has a J.D. He passed the bar. He is running for his fourth term in the U.S. Senate. He voted to confirm Roberts and Alito, to pass the DTA and AUMF, and so forth. So why the hell does he know less about this case than I do? That's really kind of scary, when you think about it. Cheers, TH

Author

Tom Head

Date

2006-07-07T17:54:46-06:00

ID

141228

Comment

And Donna, you're right about the Gitmo detainees. Only 8% of Gitmo detainees have even been accused of taking up arms for al-Qaeda, much less convicted. Most are there either because they're Taliban fighters, or because they're "associates" of terrorists. Cheers, TH

Author

Tom Head

Date

2006-07-07T17:58:21-06:00

ID

141229

Comment

Worse than that: Lott is fundamentally wrong about the responsibilities of the Supreme Court. The Constitution is the supreme law of the land. Consequently, this: It may be called the “Supreme” Court, but the framers of our Constitution intended that the American people and their elected representatives have the supreme say. is just plain wrong. The decisions that the American people and their elected representatives make can, and not so infrequently do, conflict with the Constitution. In those cases, the Constitution must prevail; otherwise it is merely a useless piece of paper. And if the separation of powers is to mean anything, obviously Congress cannot be assigned to review its own actions. Neither is the executive branch an appropriate place for a constitutionality review to take place. The judicial branch is all that's left. So Lott may not like it, but under our system, this is not only the way it works -- it's the only way it CAN work. What's even worse is that I have a strong feeling that Lott actually gets that, and that this piece is simply a piece of demagoguery intended to advance a narrow and unwise political agenda. Best, Tim

Author

Tim Kynerd

Date

2006-07-07T18:13:04-06:00

ID

141230

Comment

This sounds like a case of Lott playing to the crowd, as he sees it more than his actual understanding of the ruling. I hope.

Author

Ironghost

Date

2006-07-07T19:07:38-06:00

ID

141231

Comment

The first problematic statement that he makes is that the Supreme Court exists to enact the will of the people. This statement is pandering to the conservative right wing at its most base level. The Supreme Court has never existed to enact the will of the people. That is the role of Congress. The Supreme Court does exist to make sure that legislative enactments are in keeping with the Constitution, which is a document that the Republican party seems more and more willing to dispense with whenever the Constitution interferes with its notion of the correct pre-determined outcome. Secondly, I find it odd that the esteemed Senator is railing against the Supreme Court when there are only three democratic appointees on the Court. The Republicans picked this Court and are absolutely offended that the Court is not sufficiently right wing enough. The Senator knows better. He is hoping that we don't.

Author

Angry Democrat

Date

2006-07-10T07:54:24-06:00

ID

141232

Comment

The Supreme Court has never existed to enact the will of the people. How could it? That doesn't even make sense. You might as well not have it, if so. I agree; it's pure political pandering.

Author

DonnaLadd

Date

2006-07-10T09:55:43-06:00

ID

141233

Comment

Angry Democrat, go read The Brethren and you might take back that statement about SC not reading election returns. And don't think FDR didn't intimidate them affter he tried to pack the court. They pretty much went his way after that. Even my Con law professor, Steffey, at MC who is pretty liberal said the SC reads election returns.

Author

Kingfish

Date

2006-07-10T10:30:47-06:00

ID

141234

Comment

Technically, "the American people and their elected representatives" actually do have the supreme say in that they can amend the Constitution and thereby force the Supreme Court's hand. But that requires a whale of a lot more than the tyranny-by-51% that so many folks on the right wing seem to think they're entitled to. Cheers, TH

Author

Tom Head

Date

2006-07-10T15:41:12-06:00

ID

141235

Comment

the constitution does allow for COngress to limit the appellate jurisdiction somewhat. No one ever touches this aspect of it in Congress which gives away the fact they are merely pandering. One of the safest political ploys from either side is to bash the supreme court.

Author

Kingfish

Date

2006-07-10T16:25:48-06:00