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Correcting the “Supreme” Court

Column by Sen. Trent Lott   Filed 7/7/06 GCN

    Despite the glorification of judges and lawyers on television, in movies and within popular culture, the mission of our courts is simply to enact the American people’s will in our laws.  It may be called the “Supreme” Court, but the framers of our Constitution intended that the American people and their elected representatives have the supreme say.

That’s right. You, a U.S. citizen, and your elected representatives make America’s laws, laws which judges are tasked simply to interpret.  The Supreme Court has gotten into the disturbing trend of stepping outside the realm of interpreting our nation’s laws.  Last year they decided to delve into economic development, saying the government can take your land if private business wants it, as they did in the eminent domain case.  More recently, they have decided to dabble in the business of national security.

Justice Antonin Scalia plainly stated that the court appeared almost intent in rushing “headlong to meet” this conflict over Guantanamo, even though the court normally tries to avoid such clashes with the President’s war powers.  This suggests that some justices may see this as a deliberate showdown with President Bush and the majority in Congress.  As one of my Senate colleagues – Lindsey Graham of South Carolina, himself a reserve military judge – pointed out, the court stretched the law’s wording and made “legal contortions” to reach a “predetermined result.”

The Supreme Court’s decision that our government can’t use planned military commissions to try terrorists is the most recent example of an arrogant court that’s forgotten its place.  I’m confident that Americans can correct our courts, acting through their representatives in Congress.  We’ll spell out exactly what the administration and courts can do,  rendering this ruling without jurisdiction and meaningless. 

In fact, the three dissenting justices in this case seem to be imploring Congress to do exactly that.  Justice Scalia said that by ruling that detainees at Guantanamo, some of whom are personal assistants to Osama Bin Laden, are subject to the Geneva Conventions and U.S. law,  the court has “for the first time in history” decided to bring the judicial branch “into direct conflict with the Executive (the President) in an area where the Executive’s competence is maximal and ours is virtually nonexistent.”

In other words, Justice Scalia said the court was outside its power and expertise.  Congress had already authorized the President to do what he believes is necessary to protect Americans from further terrorist attacks.  We did that when we agreed to use military force against terrorists in Afghanistan and later Iraq.  Therefore, Supreme Court justices must defer to Congress and the President in these matters.  The justices do not receive secret intelligence on America’s enemies as do Congress and the President.  They’re out of bounds ruling on this issue.

Another dissenter, Justice Clarence Thomas, echoed Scalia, saying the court’s “willingness to second guess the Executive’s judgements in this context, based upon little more than its unsupported assertions, constitutes an unprecedented departure from the traditionally limited role of the courts with respect to war.”

 Folks, the terrorists at Guantanamo Bay are not Boy Scouts, and they’re not stupid.  They’re surely laughing right now at these rulings, watching our courts throw common sense out the window just to score political points and engage in legalistic turf battles.  The terrorists are biding their time, hoping to one day have another chance to kill Americans, a chance to which our courts seem alarmingly indifferent.  But, the good news is that our courts and its judges are not the final arbitrators.  They can always be corrected by the American people, no matter how supreme some of them may feel. 

Senator Lott welcomes any questions or comments about this column. 

Write to: U.S. Senator Trent Lott, 487 Russell Senate Office Building, Washington, D.C. 20510 (Attn: Press Office) or Email

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