A less deferential high court

The judiciary is sometimes called the least dangerous branch of government because it supposedly acts with neither force nor will, only judgment.

But the 2007-08 term that just concluded at the US Supreme Court included the spectacle of justices accusing one another of endangering American lives and of staking out a less-than-modest role on the national stage.

In cases dealing with the threats of international terrorism, urban gun violence, and child sexual predators, critics say the Supreme Court appears to be positioning itself more as a player than as an umpire.

In three 5-to-4 landmark decisions, the high court rejected judgments made by political leaders and policymakers about how best to keep the country safe and free.

In each case, the majority justices struck their own balance between security and freedom.

Whether the country is now less safe remains to be seen. But the action is important because it signals a willingness of at least some of the justices to play a more aggressive role in ongoing national controversies, particularly Bush administration policies in the war on terror.

To critics it smacks of judicial supremacy. To supporters it is the high court taking principled and courageous stands.

Two of the decisions – striking down a death sentence for child rape and requiring judicial review for terror suspects held at Guantánamo Bay – are being hailed as liberal landmarks, while the third – enforcing Second Amendment gun rights – is seen as a conservative tour de force.

The losers in all three cases were elected officials who made policy choices.

•In Washington, city officials besieged by gun violence and fearful of firearms accidents enacted a ban on handguns. In a 5-to-4 decision last Thursday, the court struck down the ban, ruling that city residents – and all Americans – have a right to keep a loaded handgun at home for self-defense.

•State lawmakers in Louisiana wanted to protect children from sexual predators, so they passed a law making child rape a capital crime. In a 5-to-4 decision last Wednesday, the justices struck down the law, saying there was a national consensus that a death sentence would be cruel and unusual punishment for a child rapist unless he killed his victim.

•In 2006, Congress and the president passed a law that sharply limited the ability of foreign terror suspects to challenge the legality of their open-ended detention at Guantánamo Bay. In a 5-to-4 decision on June 12, the court struck down the law and ordered the government to give the detainees access to American judges.

The Guantánamo ruling prompted a fiery dissent from Justice Antonin Scalia, who warned that the decision "will almost certainly cause more Americans to be killed." He and Chief Justice John Roberts blasted the majority justices for failing to accord the proper level of deference to the political branches of government.

Justice Anthony Kennedy, author of the Guantánamo decision, said the court had a duty to act and say what the law is. "The political branches," he said, "can engage in a genuine debate about how best to preserve constitutional values while protecting the nation from terrorists."

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