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Hard cases.

While the California Supreme Court imposed same-sex marriage on the Golden State, so far this season the U.S. Supreme Court has not had to confront contentious social issues. That's not to say recent decisions--including Boumediene and Dada--have not showcased how divided the high court remains. These two rulings, the most notable so far this year (as of press time), both split the court 5-4, with Roberts, Alito, Scalia, and Thomas dissenting from the liberal majority on each occasion.

These rulings have done more than illustrate the court's philosophical division, however. They also remind us that there is plenty of room for thoughtful conservatives to question the wisdom of the dissenting justices, and that the court's liberals are not always radical. John McCain disagrees: he called Boumediene, which extends basic habeas corpus protections to detained "enemy combatants," "one of the worst decisions in the history of the country." But George Will--who challenged the Republican nominee's assertion by reminding readers of Dred Scott, Plessy, and Korematsu--offered a balanced take in his June 17 column. "The Supreme Court's ruling only begins marking a boundary against government's otherwise boundless power to detain people indefinitely," he wrote, while acknowledging that "the question of the detainees'.... rights is a matter about which intelligent people of good will can differ."

The same can be said about Dada, which expanded the rights of immigrants who overstay their visas. We aren't in favor of that, but Dada's extensions are minor and procedural, allowing aliens to withdraw from "voluntary departure" agreements and appeal their removal from the country. (They could already appeal if they did not agree to "voluntary departure.") Roughly speaking, this is like allowing a defendant to withdraw a guilty plea. It's a bad idea--aliens who overstay their visits already receive lenient treatment--but not one of the worst decisions in the history of the country, even by our standards.
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Title Annotation:JUSTICE; same-sex marriage, Dada
Publication:The American Conservative
Geographic Code:1USA
Date:Jun 30, 2008
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