WASHINGTON - In its decision to accept the Guantanamo Bay prisoners' appeals despite the Bush administration's objections, the Supreme Court brushed past the "judges keep out" fence the administration had tried to erect around its open-ended detention policy.
No matter how the court rules, that action alone might come to define a singular moment in the relationship between the White House and the Supreme Court, two inherently powerful institutions that for the past several years have been in alpha mode, intent on exercising their power to the maximum extent.
Although it might not have been clear that the court was ready to step into the post-Sept. 11 debate, in retrospect it appears that the administration laid down a challenge that the justices were unwilling to ignore. This was a moment that was long in coming, and it has arrived: The imperial presidency meets the imperial judiciary.
There were less confrontational ways for the administration to defend its view that the Guantanamo policy does not violate constitutional or statutory rights. It could have defended the policy on its merits, taking the position that the detainees are receiving all the due process to which they are entitled under the circumstances and summoning the deference that the Supreme Court and other courts have traditionally given willingly to executive branch claims of military necessity.
Or it could have defended the position it took successfully before the lower courts, that the federal courts have no jurisdiction over the detention of foreigners held in military custody outside the country's borders, while at the same time conceding that this jurisdictional question was sufficiently important to merit the Supreme Court's attention. Parties to Supreme Court cases, who have won in the lower courts, occasionally acquiesce to the court's review while continuing to defend their victory.
Instead, the administration drew an uncompromising line at the threshold of the entire debate, insisting in the brief filed by Solicitor General Theodore B. Olson that the Supreme Court should not even hear these cases. The implication was that there was nothing to discuss.
Yet the question of jurisdiction - whether the courthouse doors are open to various categories of cases and claimants - goes to the heart of the Supreme Court's role, as the court's critics as well as its friends have always understood.
There have been periodic efforts in Congress to strip the federal courts of jurisdiction over questions - abortion, school busing for integration, prayer in the classroom - to which congressional critics think the courts are giving the wrong answers. A Republican senator from Colorado, Wayne Allard, recently introduced a bill to strip the lower federal courts of jurisdiction over cases involving the Pledge of Allegiance, display of the Ten Commandments on public property and other touchy church-state questions.
Core of judicial function
Jurisdictional questions, in other words, lie not at the margins but at the core of the judicial function. The question the justices framed Monday for their review of the Guantanamo cases - "Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba" - might have appeared at first glance to reflect only a technical or preliminary slice of the larger debate.
But to the justices, that is the question from which all else flows. If there is no jurisdiction, if a 1950 precedent, issued in a quite different but unmistakably related context, really means that the federal courts may not review the Guantanamo detentions, then it will be the Supreme Court and not the White House that says so.
The administration's argument that the Supreme Court should not even hear the cases was therefore a direct challenge to the court's sense of itself, a battle joined on the court's most sacred ground. "I'm surprised the administration chose to defend such a hard-line position," David A. Strauss, a former assistant solicitor general who now teaches at the University of Chicago Law School, said yesterday. "It's almost as if they are interested in vindicating an abstract point." Strauss signed one of the friend-of-the-court briefs urging the justices to accept the cases.
The administration's stance was consistent with its uncompromising position in disputes with other branches of government. It refused a congressional request for information about the energy policy task force that Vice President Dick Cheney ran early in the administration, and recently appealed to the Supreme Court to block a federal district judge's ruling that two outside groups, Judicial Watch and the Sierra Club, were entitled to information about the task force.
The administration characterizes the lower court's ruling as threatening to "violate fundamental principles of the separation of powers."