A long-awaited test of the judiciary's power during wartime came to the Supreme Court yesterday, and, contrary to the urgings of the Bush administration, the justices did not seem inclined to duck it.
During a 90-minute oral argument on the legality of the military commissions President Bush has set up to try terrorism suspects, most members of the court resisted -- sometimes sharply -- the administration's request to dismiss the case because of a new federal law circumscribing appeals by terrorism suspects.
A key comment came from Justice Anthony M. Kennedy, the closely divided court's moderate-conservative swing voter. He told Solicitor General Paul D. Clement that he has "trouble with the argument" that, because of the new law, court challenges to the commissions must wait until the trials are over.
"I had thought that the historic function of habeas corpus is to . . . test the jurisdiction and legitimacy of a court," Kennedy said. Habeas corpus is the legal vehicle through which prisoners challenge the lawfulness of their detention by the executive branch.
The court's defense of its turf does not bode well for the Bush administration's broader arguments in defense of the military commissions, but it remained unclear how the justices might ultimately rule on the merits of the case.
Details here from the Washington Post. Audio excerpts from today's oral argument can be found here.