Day in Court

The only reason you're getting this post this morning is that I've been up since 3 and had to do something to keep occupied.

A couple of interesting decisions:

In Arkansas, proof that we do need an independent judiciary

"There is no correlation between the health, welfare and safety of foster children and the blanket exclusion of any individual who is a homosexual or who resides in a household with a homosexual," Associate Justice Donald L. Corbin wrote in the opinion.

In addition, the court said, the testimony of a member of the child welfare board demonstrated that "the driving force behind adoption of the regulations was not to promote the health, safety and welfare of foster children but rather based upon the board's views of morality and its bias against homosexuals."

The court also said that contrary to what the state had argued, being raised by homosexuals did not cause academic or sexual identity problems.

And, it's nice to see the courts relying on accurate information. Remember, boys and girls -- "rational basis."

And the Supreme Court hands it to Bush:

The opinion. (PDF)

Marty Lederman, at Scotusblog:

Even more importantly for present purposes, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment. See my further discussion here.

This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the Administation has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).

Lederman, Mark Grabin, and Jack Balkin have a fascinating series of posts at Balkinization on Hamdan and its possible import. Highly recommended.

Ann Althouse finds Scalia's dissent persuasive. I knew there was something wrong with her. (It's a truism that any Court decision you don't agree with -- or don't want to agree with -- involves the justices "straining" at an interpretation.)

The Volokh Conspiracy also has a series of posts. Stuart Benjamin notes that Justice Thomas "says that Johnson v. Eisenstrager forecloses the majority's application of Common Article 3 to Al Qaeda, and that the Court should defer to the executive's interpretation." But then, Thomas pretty much always wants to defer to the executive, so I'm not sure how much attention we should pay to that.

Some of the reactions from the far-right fringes:

Gay Patriot:

Today the Supreme Court dealt a victory to al-Qaeda and their American sympathizers by siding with the enemy combatants at Club Gitmo.

Which just goes to show that GayPatriot is just as uncritical and sloppy-minded as GayPatriot West. (And this is a surprise exactly how?)

I thought the reaction at BlackFive would be interesting:

Conservatives in general and veterans in particular are all about dealing with problems, not whining about them. The decision yesterday is a setback to be sure, but let's not cry over spilt milk, let's come up with a constructive solution and advocate it.

You begin to wonder if we're in the same universe at all. As for a constructive solution, how about the rule of law? It's served us well for over 200 years, and I think we should return to it as soon as possible.

Little Green Footballs, of course, it outraged at this evidence of limits on royal . . . er, presidential power that might, perhaps, give little brown people the same rights as tall white people.

Andy McCarthy, at the Circle Jerk in the Corner, comes up with the howler of the day:

Make no mistake: if this happens, the Supreme Court will have dictated that we now have a treaty with al Qaeda — which no President, no Senate, and no vote of the American people would ever countenance.

The perennial question about the knee-jerk right: Is he that stupid, or does he think we are?

Glenn Reynolds, as might be expected, provides a link dump.

I don't have time this morning to go into any depth, and my apologies for what amounts to a link dump of my own. I don't know that I'll have time to come back to this. We'll see. It's good to know, though, that the Supreme Court hasn't been completely cowed.

And my thanks to all of you who have left comments here and other places and written me about Ben. It's the small things that don't happen any more that really get to you.

Damn.