The Nine [126]
Among the justices, especially Kennedy and O’Connor, the post–Bush v. Gore move to the left continued—and to some extent accelerated—after Grutter. Even Rehnquist almost brought what remained of his own federalism revolution to a close; he wrote the opinion in Nevada v. Hibbs, which upheld the authority of Congress to pass the Family and Medical Leave Act of 1993, a central accomplishment of the Clinton administration.
Then, in a complex series of cases, the Court struck down state and then federal criminal sentencing guidelines, against the wishes of the Bush administration. By a 6–3 vote, it overturned the Child Pornography Prevention Act, which made it a crime to create or possess “virtual” pornography, which used enhanced computer imaging rather than actual children. Even in several major criminal cases, the Court sided with the defendant and overturned convictions.
After 2000, the majority in Bush v. Gore—Rehnquist, O’Connor, Scalia, Kennedy, and Thomas—might have taken full control of the Court, but something close to the opposite took place. Their coalition crumbled. In the 2002 term, only five of the fourteen 5–4 decisions were decided by the bloc that prevailed in Bush v. Gore; in the 2003 term, it was nine of nineteen; in the 2004 term, it was four of twenty-two such cases. At first it was the legacy of Bush v. Gore that turned O’Connor and Kennedy toward their more liberal colleagues. Later, it was the Bush administration itself.
18
“OUR EXECUTIVE DOESN’T”
The burst of confidence in the military, and in the Bush administration, following the invasion of Iraq in the spring of 2003 was short-lived. A month after the argument in Grutter, on an aircraft carrier off the coast of San Diego, the president addressed a cheering crowd underneath a banner that read “Mission Accomplished.” But almost from that moment, the fortunes of the American occupation turned. A determined guerrilla insurgency killed more than three thousand American service members. Many thousands more Iraqis died. Elections were held, a constitution was passed, and a new government was established, but the American experience in Iraq turned out to be considerably more difficult than it had initially appeared. And just as the war turned sour, the first cases growing out of the administration’s broader war on terrorism reached the Supreme Court. They concerned an idyllic stretch of Caribbean coastline known as Guantánamo Bay.
After American and Cuban forces evicted the Spanish from Cuba in 1898, the United States military remained on forty-five square miles along the southern coast of the island. The American presence became official with a treaty signed by the two nations in 1903, eventually setting an annual rent at $4,085. To this day, the American government offers payment to the Cuban government every year, but during the nearly five decades that Fidel Castro has been in power, his government has accepted it only once.
The war in Afghanistan created an unprecedented level of activity at Guantánamo Bay and gave it international notoriety. On January 10, 2002, the military began moving prisoners there from Afghanistan, and all the armed services, not just the navy, were asked to run Joint Task Force Guantánamo. In a press conference that same day, Donald Rumsfeld, the secretary of defense, said that the prisoners were “unlawful combatants” who “do not have any rights under the Geneva Convention.” Among the rights granted by the Geneva Conventions is the right to an individual hearing to determine the status of each prisoner.
A chorus of international condemnation—from the United Nations, the European Union,