The job description for U.S. Supreme Court justice does not include the ability to predict the future. Federal appeals court judges must rule on constitutionality, not probability.
But through the years, the “likelihood” of something occurring based on a law or an action under review by the court seems to have crept its way into rulings.
That may have merit, and it may not.
But if judges allow their “predictions” to make it into their opinions, I think they should remain consistent. And so, two recent opinions seemed to serve as examples of judicial crystal ball reading unevenly applied. First, comes the ruling in Boumediene v. Bush, the case that focused on habeas corpus rights for detainees at the Guantanamo Bay Naval Base. In a 5-4 ruling, the court extended those rights to foreigners detained by the U.S. government for their alleged involvement in terrorism.
Justice Antonin Scalia wrote the minority opinion, an extensive piece examining the historical roots of habeas corpus and the rights of non-U.S. citizens in our country’s courts. But the part of the opinion that stuck out for me was this: Scalia said the nation is “at war with radical Islamists” and that the court's decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”
For the purpose of discussion, let’s say that Scalia’s prediction of American deaths resulting from the ruling comes with merit and should come into play during the court’s review.
In that light, let’s look at the decision in District of Columbia v. Heller.
In this case, the court struck down a Washington, D.C., handgun law, a law that its supporters argue significantly reduces deaths and the potential for deaths from handguns.
In this 5-4 ruling, Scalia stood with the majority, who upheld the Second Amendment right—in certain circumstances—for residents to possess weapons.
Scalia wrote for the majority. In that opinion, he mentions nothing about the longstanding “war on crime” or how the ruling that struck down the D.C. law “will almost certainly cause more Americans to be killed,” even though one could argue that a handgun killing in the nation’s capital is far more likely to occur daily than a terrorist attack.
To be clear and as I have said in the past, terrorism is a real threat and that will never change. And I understand that the constitutional right to bear arms is far from being resolved. Scalia made it clear in his opinion that the majority in Heller recognizes that government maintains the right to control weapons in certain environments, notably in schools and public buildings.
I think that when it comes to applying the law, justices need to do it consistently or leave the Ouija boards at home.
Resources:
Related iCitizenForum blogs
- The Opening Shot - I
- The Heart of the Case – II
- Understanding the Second Amendment - III
- What the Court Said - IV
- Annie Get Your Lawyer - V
- Supreme Court Makes Correct Decision
News reports on District of Columbia v. Heller handgun laws
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