The Nine [192]
In a curious echo of his opinion in Stenberg, the abortion case of the previous year, Justice Kennedy said the death penalty for child rape cases might damage the victim of the crime. “Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice,” he wrote. (In the notorious section of Stenberg, Kennedy had written, based on little or no evidence, that the federal abortion ban actually helped some women because many women come to regret having abortions.) The gestures reflected Kennedy’s blunderbuss stabs at empathy, though his concern was surely more appropriate for children than for adult women. In one of his more awkward passages, Kennedy wrote, “In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.” In the spirit of Roper, with its reliance on international law, a group of British lawyers and scholars filed a brief in the Patrick Kennedy case, pointing out that the death penalty for rape had been abolished in Britain many years ago. But Justice Kennedy, perhaps mindful of the storm such citations had caused in the past, did not refer to international law in his opinion.
Like the death penalty, the treatment of the detainees at Guantánamo was a cause célèbre among Kennedy’s colleagues on the international judicial circuit. That issue returned to the Court once more in 2008, with Kennedy playing his customary role as the swing vote.
Two years earlier, in the Hamdan case, Justice Stevens’s opinion for the Court had rejected the Bush administration’s plan for the detainees because, among other reasons, it had been established by the president alone, without the concurrence of Congress. So shortly after Hamdan came down in June 2006, Bush introduced the Military Commissions Act, which essentially ratified the previous system of trials at Guantánamo and, most importantly, barred the detainees from filing petitions for habeas corpus in federal district courts. According to the administration’s theory, the system at Guantánamo amounted to an adequate substitute for habeas proceedings. Court challenges to the new law began as soon as it was passed. The case came to the Supreme Court under the name of Boumediene v. Bush; the plaintiff was a thirty-eight-year-old Algeria-born Bosnian, who had been held at Guantánamo since 2002.
The case was tailor-made for Anthony Kennedy, because it raised fundamental questions about the historic power of the judiciary. The right to petition for habeas corpus—to ask a judge to release you from unjustified incarceration by the executive branch—was so important to the framers that they put it in the Constitution itself, not just the Bill of Rights. As Kennedy wrote in his opinion, “The framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.” It is true that Congress had sometimes tried to limit the right by establishing alternative procedures, most notably in the Orwellian-sounding Antiterrorism and Effective Death Penalty Act of 1996. But