The Volokh Conspiracy - Terrorism Policy and Predictions of How the Supreme Court May Rule:

Paul Mirengoff makes an interesting point in response to the Post's story yesterday about internal Bush Administration debates on what legal policies to adopt relating to terrorism:

In a few cases, the result was positions that strike me as indefensible, such as the decision to detain Hamdi (an American) for more than two years without a hearing or a lawyer. In other cases, though, "pushing the envelope" consisted of refusing to change a policy based on well-founded predictions that Justice Kennedy, the Court's swing vote, would reject the administration's position. This seems justifiable. The system may be set up to confer Kennedy with ultimate decision-making power on terrorism-related legal issues. But until Kennedy actually speaks, it's appropriate for the administration to take whatever reasonable positions it thinks will best protect the country. A position is not unreasonable merely because Justice Kennedy might well disagree with it.

  I agree with Paul that if an Administration thinks that it needs to take a step to protect the country, and that step appears legal based on existing precedents, it should not rule out the measure because it thinks a future Supreme Court might change the law and take a different course.

  At the same time, the passage in the Post story doesn't suggest to me that the issue in the debates over terrorism was really about national security in the short-term sense. Instead, as occasional co-blogger Stuart Benjamin noted here a long time ago, the debates were mostly about national security in the long-term sense. That is, those wanting to take the strong Executive positions did so to help future Executives to deal with future threats over the next few decades.

  If that's right, then the way the Supreme Court might vote in the short term really does become an important question. Go too far and you trigger a backlash. Lose the court's trust and you're in much worse shape that you would have been with a more moderate position. I gather that's why the lawyers with a deep knowledge of the Supreme Court (Ted Olson, Brad Berenson, Brett Kavanaugh, etc.) were counseling caution. Presumably they figured that the likely choice was between precedents giving a thumbs up to moderate steps and precedents slapping down broader ones.

	[Orin Kerr, June 26, 2007 at 5:22pm] Trackbacks Terrorism Policy and Predictions of How the Supreme Court May Rule: Paul Mirengoff makes an interesting point in response to the Post's story yesterday about internal Bush Administration debates on what legal policies to adopt relating to terrorism: In a few cases, the result was positions that strike me as indefensible, such as the decision to detain Hamdi (an American) for more than two years without a hearing or a lawyer. In other cases, though, "pushing the envelope" consisted of refusing to change a policy based on well-founded predictions that Justice Kennedy, the Court's swing vote, would reject the administration's position. This seems justifiable. The system may be set up to confer Kennedy with ultimate decision-making power on terrorism-related legal issues. But until Kennedy actually speaks, it's appropriate for the administration to take whatever reasonable positions it thinks will best protect the country. A position is not unreasonable merely because Justice Kennedy might well disagree with it. I agree with Paul that if an Administration thinks that it needs to take a step to protect the country, and that step appears legal based on existing precedents, it should not rule out the measure because it thinks a future Supreme Court might change the law and take a different course. At the same time, the passage in the Post story doesn't suggest to me that the issue in the debates over terrorism was really about national security in the short-term sense. Instead, as occasional co-blogger Stuart Benjamin noted here a long time ago, the debates were mostly about national security in the long-term sense. That is, those wanting to take the strong Executive positions did so to help future Executives to deal with future threats over the next few decades. If that's right, then the way the Supreme Court might vote in the short term really does become an important question. Go too far and you trigger a backlash. Lose the court's trust and you're in much worse shape that you would have been with a more moderate position. I gather that's why the lawyers with a deep knowledge of the Supreme Court (Ted Olson, Brad Berenson, Brett Kavanaugh, etc.) were counseling caution. Presumably they figured that the likely choice was between precedents giving a thumbs up to moderate steps and precedents slapping down broader ones.