The Nine [193]
What tipped the issue for Kennedy, however, was the political and historical context of the latest Guantánamo case. The Bush administration had fought the Court every step of the way since the terrorists attacks of 2001. In Hamdi and Rasul (in 2004) and Hamdan (2006), the Court risked its own political capital by forcing the president to comply with the Constitution. The time for Kennedy to give Bush the benefit of the doubt had long since passed. The detainees were rotting in Guantánamo, year after year. As Kennedy wrote, “While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.” It was a final, and crushing, rebuke to the Bush administration.
Kennedy’s opinion set Scalia into one of his more fantastic rages. In his dissenting opinion, he wrote, “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.” Accusing his colleagues of causing the death of their fellow Americans was outside the norm, even by Scalia’s standards; but Kennedy—and Souter, in his concurrence—showed that they knew better than to rise to the bait. (And as a simple substantive matter, it seems clear that Scalia’s point was wrong, for the Court’s opinion did not force the government to release a single terrorist, merely to give them reasonably fair hearings.) Notably, Scalia’s intemperate dissent was joined not just by Thomas (as was customary), but Roberts and Alito as well—revealing their true feelings about the power of the executive branch, which had been a conservative cause since the Reagan years.
On May 6, 2008, with just several weeks to go in the Supreme Court’s term, Barack Obama won the North Carolina primary and came close to Hillary Clinton in the Indiana race, making him the all-but-certain Democratic nominee for president. It was on this day that John McCain, the presumptive Republican nominee, chose to give a speech about his judicial philosophy. The speech showed how the politics of the Supreme Court, no less than the nation’s, were changing.
Over the years, McCain had had a troubled relationship with the base of the Republican Party. His apostasies on such issues as immigration and campaign finance reform created suspicions that not even his firm pro-life stand, and accompanying opposition to Roe v. Wade, could overcome. So McCain’s speech about judges and law was an attempt to reach out to the base—to show that, at least on such crucial issues as abortion and the death penalty, he was one of them.
But there was a problem. For all that the conservative legal agenda, which first took shape under Attorney General Edwin Meese III in the Reagan administration, now dominated the Republican Party, the broader public never came on board. Support for abortion rights, and Roe in particular, was high; so was public support for affirmative action; and opposition to the death penalty was growing. McCain had to be careful about what he said on these issues. For starters, he decided to give this speech on a day when the political world was focused elsewhere; and in the speech itself, which was given at Wake Forest University, he talked in a kind of code—one that was decipherable to the base, but mysterious to almost everyone else.
McCain began with a paean to the wisdom of the framers of the Constitution for establishing the separation of powers. “The executive, legislative, and judicial branches are often wary of one another’s excesses, and they should be,” he said, before adding, in a comforting way, “The system of checks and balances rarely