When the Supremes decide a case, lawyers go to work.  We parse, analyze, dissect and question.  Sometimes, lawyers can see so much and still be unbearably blind.

All the usual suspects have offered thoughts and analyses of the Boumediene v. Bush decision.  Gideon has even been gracious enough to cherry pick some of the best quotes from the decision, thus saving many from the tedium of reading it.  Like so many Supreme Court opinions, it sports broad, grand language of the sort that makes lawyers swell with pride just thinking about the majesty of the law.

But for all these great minds considering the decision, only Dahlia Lithwick noticed that it doesn’t do a thing for the flesh and blood people hiding behind all those fine words.

This is, after all, the third stinging setback and blistering rebuke the court has handed the Bush administration with respect to prisoner rights at Guantanamo. Yet you may have noticed that all of these setbacks and rebukes have mostly meant more hot days in orange jumpsuits, more solitary confinement, and ever more plus ça change for the detainees there. At his pretrial hearing in April, one of the detainees “lucky” enough to actually face a trial, Salim Hamdan, pointed out to the presiding judge that winning his own appeal at the Supreme Court in 2006 got him precisely nothing.

How is it possible that lawyers, giddy with their “win”, neglect to notice that not one human beings has as yet benefited from these huge victories?  What point is there for the litigant to win if, in the end, it changes nothing?

Even the justices have failed to recognize that the impact of their decision is nonexistent:

This is pretty legal and technical, and the concrete ramifications are still baffling to just about everyone. Judging by the tone of Justice Antonin Scalia’s dissent, however, you’d think that Justice Anthony Kennedy and his colleagues in the majority not only released Hamdan and his buddies from their imprisonment at Guantanamo, but also armed them with a rocket launcher and paid their collective train fare to Philadelphia. “The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed,” Scalia wrote. He concluded his dissent with this warning: “The Nation will live to regret what the Court has done today.”

Could Justice Scalia’s fears be just a little overwrought here?  This is law detached from reality, as not a single person has walked free as a result of any ruling of a court.

Scalia points to the 30 detainees released from Guantanamo—by an order of the Bush administration, not a court, it should be noted—who have allegedly “returned to the battlefield.” One detonated a suicide bomb in Iraq in May. Scalia notes that this “return to the kill” happened even after “the military had concluded they were not enemy combatants” (italics his). So you see, even those who were deemed innocent at Guantanamo are actually guilty in Scalia’s mind. And whether or not they ever get to go home, the mere act of providing them with civilian court oversight will surely endanger yet more American lives.

Of course, this case comes too late and offers too little to be of much use to any person who might actually be involved.  But the Supremes are always looking toward the future, keenly aware of how today’s decision will affect tomorrow’s nation.

The dissenters here are unwilling to bear the risk that any of the 270 men at Guantanamo—among them people who were grabbed as teens and others who claim actual innocence—go free. And, indeed, reasonable people can disagree about whether that risk is too much to bear. But Scalia and his dissenting friends today made clear that this is not the risk to which they most object. What they cannot accept is the risk that their brothers and sisters on the federal bench—with decades of judicial experience and the Constitution to light their way—might now do what they are trained to do: hear cases.

Frankly, I understand Nino’s fear.  It’s similar to mine, albeit the opposite.  I’ve lived through too many “stinging defeats” and “blistering rebukes” that never actually did a thing to help the person whose name the decision bears to take this too seriously. 

The point of our courts is to not merely engage in an academic exercise, but to address a controversy and provide relief to a person whose freedom depends on its outcome.  We forget this part far too often.  Perhaps one day a district court judge will cite to Boumediene as the precedent she is constrained to follow, and allow some purported enemy combatant his day in court.  After which, he will be shipped back to the gulag to spend his hours trying to appreciate the majesty of American justice.  Should we pat ourselves on the back for being such fine lawyers?