A Brief Lament on Hamdan

Abstract

This very brief working paper (8 pages, 20 footnotes) analyzes the form of the Supreme Court's decision in Hamdan v. Rumsfeld, not the result in that case. It notes the extreme verbosity of the Justices' six opinions, collectively comprising 60,800 words or eight times the length of our entire Constitution. It describes the Justices' focus on technical nuances of statutory construction and their virtual neglect of constitutional values and long-term historical context. The paper then analyzes the practical and political effect of this hyper-technical approach, which was apparently intended to fend off criticism of the Justices as judicial activists. It concludes that the Hamdan Court's approach to decision making, in what may have been the most important case in a generation: (1) reduced the Justices' prestige as educators-in-chief in matters of law and their authority as leaders of an independent branch of government, (2) continued a pernicious modern trend in the legal profession, making the law more and more obscure, inaccessible and incomprehensible to ordinary people, and therefore (3) likely weakened, not strengthened, the Court's practical authority and the rule of law generally.

Keywords: Hamdan, Supreme Court, Justices, rule of law, separation of powers, checks and balances, Constitution, jurisprudence, Geneva Convention, law of war, Detainee Treatment Act, statutory interpretation

JEL Classification: K19, K39, K49