Federal courts and judicial system

Federal Courts

On Linda Greenhouse's Op-Ed: "Lessons Maybe Learned"

Linda Greenhouse in her New York Times article titled Lessons Maybe Learned reminds us that the federal courts still exist, despite the weakening of Constitutional protections for privacy, free speech, and due process, and against cruel and unusual punishment since 9/11. She opens her opinion piece by relating her sentiment of the almost invisibility of judicial branch in the post-9/11 America. Of course this is an overstatement intended to catch the attention of readers, because numerous cases have been heard and decided, such as challenges to military tribunals, indefinite detentions of 'enemy combatants', and elements of the PATRIOT Act. Yet, Greenhouse seems to have captured the arguably pervasive feeling that the federal courts have been effectively sitting on the sidelines while the executive branch and the Congress set domestic policy that often undermines Constitutional protections.

This naturally begs the question of what role, if any, the federal courts should play in helping to shape policy. Greenhouse attempts to remind us that the federal courts have acted primarily as a check on the obvious power grabs that Congress and the executive branch have engaged in during the post-9/11 period. She gives several important examples, such as protecting its jurisdiction in Guantanamo Bay, holding the Bush Administration's unilateral establishment of military commissions unconstitutional, and reestablishing at least some semblance of due process for enemy combatants.

Greenhouse reminds us that the federal judiciary did not succumb to the post-9/11 sentiment that seemed to sweep the nation into a unified uber-patriotic voice calling for a War on Al-Qaeda and eventually Saddam Hussein, despite indications that the power-brokers in Washington viewed public sentiment as a perpetual Constitutional 'get out of jail free' card for the executive branch. In support of this contention she quotes Justice Sandra Day O'Connor's opinion in Hamdi v. Rumsfeld that states "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

To drive her point home, Greenhouse brings up recent decisions by conservative federal judges that have struck down state statutes attempting to make the process of seeking an abortion so burdensome that abortion would be effectively eliminated. She interprets these recent decisions as indications that the federal judiciary is sensing that things have become so out of balance that even conservative judges are starting to lose patience with radical far right politicians.

Although Greenhouse makes several good points, her opening sentiment that the post-9/11 "… judicial legacy is a fuzzy one & #8230;" reveals an underlying belief that the courts could have done much better. Even though her last line expresses gratitude that the judiciary simply didn't lay down for the legislative and executive branches, the between-the-lines message seems to be 'be happy, it could've been worse.'