|Who is a person? How do you qualify for basic human rights? What is required for you to be able to speak or worship freely or to be free from torture?|
Throughout American history, the Supreme Court has considered and reconsidered the criteria for membership in the club of rights, oscillating between a vision limiting rights to preferred groups and another granting rights to all who require protection. These competing visions have led to some strange results.
Corporations (as well as unions) can spend on political speech to further their group interests as though they were individual political actors. Corporations can assert religious rights to gain legal exemptions from laws that would otherwise apply to them. Muslim detainees at Guantánamo Bay, however, have none of these rights.
As a corporate litigator who has also spent more than a decade defending Guantánamo detainees, I have been trying to figure out why corporations are worthy of court protection and Muslims held in indefinite detention without trial by the United States at a naval base in Cuba are not.
The direction of the Supreme Court under Chief Justice John G. Roberts Jr. over the past decade has been anything but consistent. As the court readies itself for another term, it may not be possible to speak of a Roberts court jurisprudence at all. Even within the conservative and liberal blocs there are a range of views on the limits of executive power, the relationship between the federal government and...