Jack Balkin believes the Hamdan decision is “democracy forcing.”

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.

While the court may have, in fact, instigated what one could consider a democratic process, it had to override other democratic processes in order to justify such an order. The majority blithely swept aside the stripping of it’s jurisdiction by the DTA, using a puzzling justification that relied in part on cherry-picked floor statements made by members of Congress during the bill’s debate, and in part on the legislative history of the act. Scalia, however, notes that, “We have repeatedly held that such reliance is impermissible where, as here, the statutory language is unambiguous.”

In addition, a court that susbstitutes its, albeit reasonable, interpretation of a treaty in place of the admittedly reasonable interpretation of the Executive is, as Justice Thomas points out, committing “an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority.”

Justice Thomas was so angry he did something he hasn’t done in 15 years in reading his dissent from the bench. He has reason to be angry as this seems like more democracy-destroying judicial activism to me.

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