The Difference Between O’Connor and Roberts

Judge John Roberts needs to be asked about his position on the amount of deference that should be given to the President in conducting the war on terror.

Just last Friday, Judge Roberts ruled with two of his colleagues on the D.C. Circuit that the Bush administration’s plan to convene military tribunals to try terrorist detainees at Guantanamo Bay was constitutional. Roberts overruled a lower court’s opinion that the tribunals violated the Geneva Convention. In the opinion, Roberts asserted the position of the Bush administration that the Geneva Convention does not apply to the Guantanamo detainees because they belonged to no government entity.

But the opinion, as Columbia law professor Michael Dorf has noted, simply assumes one of the facts that needs to be determined by a court — that is, whether the detainee is in fact an “unlawful combatant.” That’s the role of a judge — to ensure due process. This is a vital question, particularly given that Roberts would replace Justice Sandra Day O’Connor on the high court. Here’s their key difference on the issue:

Justice Sandra Day O’Connor:

“A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”


Judge John Roberts, joining opinion of Hamdan v. Rumsfeld:

“Under the Constitution, the President ‘has a degree of independent authority to act’ in foreign affairs, and for this reason and others, his construction and application of treaty provisions is entitled to ‘great weight.’