CLT and Boumediene

A few thoughts with respect to Rob's two posts, and Michael's, on the question whether we, or CLT, really have anything useful or illuminating to say about the decision and questions presented in Boumediene.

First, it strikes me as quite unlikely that any particular separation-of-powers arrangement is required by Catholic teaching.  It seems a stretch to think that, say, Catholic teaching dictates, with any specificity, the reach of the federal courts' jurisdiction or the content of the judicial power vested in the Court by Article III.  Yes, of course, we can find support in Church teaching for human-dignity-promoting rule-of-law norms -- and a meaningfully independent judiciary would certain seem necessary for the vindication of such norms -- but I don't think the passages Rob [Correction:  Albert Brooks, who wrote in to Rob] cites put to rest concerns one might (in my view, should) have about Justice Kennedy's opinion, its premises about judicial power, and whether the majority responsibly (or constitutionally) exercised that power, in striking down portions of two acts of Congress without providing meaningful guidance to lower courts and legislators going forward. 

Next, we all agree that the Church's teachings rule out torture.   That torture is immoral, and should also be illegal, does not answer questions about, say, the sufficiency of the review-process at issue in Boumediene, or about the meaning of the Eisenstrager precedent -- a meaning which, one could reasonably think, the majority evaded, without admitting as much.

That the four dissenting Justices are -- like Justice Kennedy -- Catholic does not suggest to me (as it perhaps does to Rob '[correction:  Mr. Brooks]) that they missed or ignored their obligations as Catholics.  (Nor do I necessarily take their dissents as reflecting a conscious application of Catholicism-inspired rule-of-law values in the case at hand.)  The Faith does not tell us how far the Great Writ reached at the Founding, or how much process is required to substitute adequately for the writ, or whether, in a case like this, where the Executive and Congress are on the same page and therefore, at least since Youngstown, have enjoyed judicial deference, it is appropriate for the Court to nevertheless announce -- without, again, providing much guidance for the future -- that their joint determination is constitutionally invalid.  I am inclined to think, that the Faith neither requires nor authorizes willful judging, even in the service of, on balance, wise and humane policies.  The dissenters, on my reading, are reacting to what they perceive as willful judging; they are not dissenting from Catholic teaching.