THE WINDS OF CHANGE ★^1127without charge or the right to see a lawyer. The Court ruled that he had a right
to a judicial hearing. “A state of war,” wrote Sandra Day O’Connor for the 8-1
majority, “is not a blank check for the president when it comes to the rights
of the nation’s citizens.” Even Justice Antonin Scalia, the Court’s most promi-
nent conservative, rejected the president’s claim of authority to imprison a cit-
izen at will as antithetical to “the very core of liberty.” After claiming in court
that Hamdi was so dangerous that he could not even be allowed a hearing,
the administration allowed him to return to Saudi Arabia on condition that he
relinquish his American citizenship.
By the time the next significant case, Hamdan v. Rumsfeld, came before the
Court in 2006, President Bush had appointed two new justices— Chief Justice
John Roberts, to replace William Rehnquist, who died in 2005, and Samuel
Alito Jr., who succeeded the retiring Sandra Day O’Connor. The Court was
clearly becoming more conservative. But in June 2006, by a 5-3 margin (with
Roberts not participating because he had ruled on the case while serving on an
appeals court), the justices offered a stinging rebuke to the key presumptions
of the Bush administration— that the Geneva Conventions do not apply to pris-
oners captured in the war on terrorism, that the president can unilaterally set
up secret military tribunals in which defendants have very few if any rights,
and that the Constitution does not apply at Guantánamo prison. Congress, the
majority noted, had never authorized such tribunals, and they clearly violated
the protections afforded to prisoners of war by the Geneva Conventions, which,
the Court declared, was the law of the land.
In June 2008, the Supreme Court rebuffed the Bush administration’s strat-
egy of denying detainees at Guantánamo Bay the normal protections guaran-
teed by the Constitution. Written by Justice Anthony Kennedy, the 5-4 decision
in Boumediene v. Bush affirmed the detainees’ right to challenge their detention
in U.S. courts. “The laws and Constitution are designed,” Kennedy wrote, “to
survive, and remain in force, in extraordinary times.” Security, he added, con-
sists not simply in military might, but “in fidelity to freedom’s first principles,”
including freedom from arbitrary arrest and the right of a person to go to court
to challenge his or her imprisonment.
The Midterm Elections of 2006
With President Bush’s popularity having plummeted because of the war in
Iraq and the Hurricane Katrina disaster, Congress beset by scandal after scan-
dal, and public- opinion polls revealing that a majority of Americans believed
the country to be “on the wrong track,” Democrats expected to reap major
gains in the congressional elections of 2006. They were not disappointed. In a
sweeping repudiation of the administration, voters gave Democrats control of
What events eroded support for President Bush’s policies during his second term?