Judicial Prudence: Does the Supreme Court Always Fail Us Precisely When We Need It the Most?

The Supreme Court of the United States has chosen not to review the Padilla case, the case in which a U.S. citizen was seized in Chicago and held for three years as an "enemy combatant" -- all without a showing of probable cause before a judicial officer and without any other form of judicial review of the merits of the seizure and detention.Bruce Ackerman has it right: this sort of "judicial restraint" leaves open the possibility that this President or another will unilaterally seize and imprison (and execute?) greater numbers of U.S. citizens in the name of the "war" on terror.

The Supreme Court failed us during the Vietnam War: it successfully avoided having to decide the illegality or illegality of that war. Today's edition of the Supreme Court may fail us again: this Court may successfully avoid deciding whether a President can or cannot unilaterally seize and imprison a U.S. citizen. This sort of "restraint" is contemptible judicial behavior; it is a mockery of the ideal of the rule of law; and it is a crude violation of the fundamental principle that the life and liberty of citizens may not be taken away by the whim or the pleasure of the executive.

Of course, it is possible that the Supreme Court secretly harbors the intention of someday rendering an opinion about the legality of the government's treatment of Padilla. If so, I say: What harm can a few more years or decades do? After all, unlike Milosevic, Padilla probably won't die of a heart attack during his first decade of imprisonment.