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Be sure to read Tori Marlan’s cover story in the new issue of the Reader on Mohamed Mohamed Hassan Odaini, a young Yemeni man who’s been a prisoner in Guantanamo for the past five years. Consider the glimpse it offers of Congress subverting our system of checks and balances. “The Republican-controlled Congress did what it could to help the Bush administration stave off judicial oversight,” Marlan writes. “After the Supreme Court ruled [that Guantanamo prisoners could challenge their detention in U.S. courts], it passed the Detainee Treatment Act of 2005, stripping Guantanamo prisoners of their access to U.S. courts. When the Supreme Court ruled that the law had no effect on already pending cases, Congress dotted that i by passing the Military Commissions Act of 2006.”
This is a snapshot of Congress as presidential toady, sucking up to government’s alpha branch by cutting the geeky judiciary down to size. Among conservatives, curbing the courts has long been regarded as righteous behavior, and given the changes in the Supreme Court, we may soon find liberals replacing them in the chorus. “Activist court decisions have undermined nearly every aspect of public policy,” Ed Meese, who’d been Ronald Reagan’s attorney general, told a Senate committee in 1997. “Congress should exercise its power to limit the jurisdiction of the federal courts.” Congress has tried. One big issue facing the U.S. Supreme Court in its new term is how much leeway federal judges have to think for themselves in the face of the federal sentencing guidelines Congress has set. Perhaps what we really have in the U.S. is less a balance of power than a rock-paper-scissors arrangement: the executive bullies the legislative, which bullies the judicial, which now and then bullies the executive.
