Since September 11, 2001, we have been fighting the so-called “war on terror” without the active participation of all three branches of government. For the first several years, a very aggressive president acted alone, without Congress or the Supreme Court. Since the Democrats regained control of Congress in 2006, the president has been acting sometimes with and sometimes against Congress. But at no time has the Supreme Court been an active participant in constitutional debates about the post-9/11 world. On the major constitutional issues of the recent past—Iraq, torture, wiretapping without warrants, the Patriot Act, and Guantánamo—the Court has decided cases related to just one of these.

It is true that the Court has intervened to decide several relevant cases following September 11: three in 2004, one in 2006, and then a few to come by this June. But to date these decisions have addressed structural constitutional issues, such as the separation of powers or the jurisdictio...

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FOOTNOTES:

• [1] The same is true of two cases that the Supreme Court will decide this year about two American citizens being detained in Iraq: The Court will address whether they can file a petition in an American court, but not address the merits of their petitions.