Here’s an excellent summary by law professor John Yoo of how the Supreme Court ruling in Boumediene v. Bush is a case of egregious judicial overreach:
First out the window went precedent. Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge. Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention…
The Boumediene five also ignored the Constitution’s structure, which grants all war decisions to the president and Congress. In 2004 and 2006, the Court tried to extend its reach to al Qaeda terrorists held at Guantanamo Bay. It was overruled twice by Congress, which has the power to define the jurisdiction of the federal courts.
As Matthew Continetti writes here, this is a case of a “judicial power grab” (Yoo called it a “brazen power grab”). The Court here extended the right of habeas corpus where it was never meant to apply, and ignored the fact that Congress has already used its constitutional powers to agree on the appropriate safeguards for trials of these illegal enemy combatants.
There is a general tendency of people in power to want to extend it. So it stands to reason that judicial overreach is one of the built-in hazards of the trade of being a judge. After all, to a hammer, everything looks like a nail. The Supreme Court has only one tool in its kit, its rulings, and judges must fight against the temptation to overuse them to get the results they want to see.
Legal precedent acts as one of the major checks on this tendency. The tradition of following precedent tends to discourage judicial overreach.
But the law is not stagnant, nor should it be. If precedent were the only important thing, there could be no change and no improvement and growth in the law. Precedents are continually being reinterpreted based on ongoing and evolving understanding of the law, language, the intent of the framers, and new problems that arise in the course of time. But there should be no enormous leap that completely ignores and/or contradicts precedent, especially if there is another remedy available for the problem at hand.
There is already another remedy here: the statutes passed by Congress to govern these matters as part of its war powers. As Yoo points out:
The Court refused to wait and see how Congress’s 2006 procedures for the review of enemy combatant cases work. Congress gave Guantanamo Bay prisoners more rights than any prisoners of war, in any war, ever. The justices violated the classic rule of self-restraint by deciding an issue not yet before them.
The rule is a “classic” for a reason: it protects us all. One day such overreach may lead to a result that you agree with, but next time it could achieve something quite different. The framers of our Constitution were wise enough to know that we would best be protected by reserving certain powers to each branch of government, and to know that each branch would probably want to usurp the powers of the others and claim them for themselves. The Supreme Court is no different.