Separation of Powers: The solicitor general opened his Cheney Energy Task Force oral argument by saying it was a case about the separation of powers. Quite true; it is a case about the proper reach of the power of the judicial branch and that of the people themselves (the Tenth Amendment speaks of the reserved powers of the people as well as the states). It also is a case about checks and balances, including the role of the other branches and the people themselves to check and balance the executive. Various cases involving the closing immigration hearings to the press show other "powers" are involved as well. It's so useful to be able to use your opponent's argument against them, don't you think?

This theme can also be applied to the enemy combatant cases involving U.S. citizens, oral arguments held today. It seems that the justices are quite combative in these cases (toss in the Cheney case ... and "enemy combatant" to many of us, including those undisclosed locations), not just Justice Scalia. Perhaps, they know the stakes and the basic exciting drama being carried forth here, a drama that shows the wonders of a free country as well as the dangers. The justices did seem wary about the challenge to the Cheney Energy Task Force, though the nature of the case would allow them to rule narrowly. If so, perhaps the next time around, you know who will be out of office. [Update: As to today's arguments, see here on how they want to "trust us."]

[How about Justice Scalia? Not surprisingly, he basically seemed to be his usual self. He is a long time supporter of executive privilege, so seriously, one sounds silly suggesting his friendship would influence his ruling in any major way. He asked a couple tough questions to the other side. The whole point, conveniently ignored, is "appearance of impropriety." The rule doesn't suddenly disappear if one is likely to rule a certain way anyway. Let's hope this isn't a 5-4 ruling in support of Cheney.]

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The Supreme Court by a 5-4 vote rejected a charge of political gerrymandering, though leaving things open for future charge. [It was a plurality opinion; see here for a good account.] The current climate is a dangerous threat to true democracy and the principle that legislators, surely representatives, should not consider their seat as some sinecure. And, districting should be able to done in some neutral way, not some computer generated gerrymander system that can result in every seat becoming "safe." If we add the new habit of mid-decade re-districting, also done for partisan ends, we have a mess on our hands. The system never was truly impartial, but at some point, it gets to be too much.

Maybe, the judiciary isn't place to go for a solution, at least not the federal judiciary. Justice Kennedy's concurrence intelligently warns of the complications involved. Still, this too hurts the integrity of the "powers" of government in such a way that raises key First Amendment concerns as well -- a realistic chance that one's vote will matter should not be blocked by districting for the benefit of a particular political group. Thus, he notes: "That no such standard has emerged in this case should not be taken to prove that none will emerge in the future." As Justice Stevens notes, the alternative are legislatures that are not "bodies which are collectively responsive to the popular will."