Last week, we watched as several senators voted for a bill redefining the treatment, detention, and trials of enemy combatants, even as they expressed doubts as to its constitutionality. The bill setting up military tribunals for enemy combatants, among other constitutional infirmities, contains a provision stripping courts of their power to review the constitutionality of the detentions. This provision, which suspends the writ of habeas corpus for current and future detainees, was contested by a number of senators, but the amendment that sought to excise it from the final bill failed by a vote of 51-49.

Before that amendment was rejected, Sen. Arlen Specter, R-Pa., chairman of the Senate judiciary committee, announced, "I'm not going to support a bill that's blatantly unconstitutional ... that suspends a right that goes back to [the Magna Carta in] 1215." He added, "I'd be willing, in the interest of party loyalty, to turn the clock back 500 years, but 800 years goes too far."

Specter's justification for then voting for a bill he deemed unconstitutional? "Congress could have done it right and didn't, but the next line of defense is the court, and I think the court will clean it up."

There is some irony in this congressional willingness to see the courts as some kind of constitutional chambermaid--as an entity that exists to clean up after Congress smashes up the room. It is especially ironic when it's articulated by members of Congress who like to invoke judicial restraint as a constitutional value. But it is beyond ironic, and approaching parody, when Congress asks the court to clean up a bill it knows to be unconstitutional, when the bill itself includes a court-stripping provision.

The ongoing popular debates about the terms and parameters of "judicial activism" or "restraint" really have to be understood in institutional terms. Congress behaves strategically. When it is convenient, members of Congress will praise and advocate judicial restraint, and when it is not, they will rely on "activist" judicial intervention. Sen. Specter's argument during the Roberts and Alito hearings bears this out. Specter was distressed not that the court was too activist in striking down acts of Congress, but that it was too activist in striking down the wrong acts of Congress. Yet this judicial backstop serves Specter's goals when he is unwilling to make the call himself.

Whether one agrees or disagrees with any given view of what the Constitution requires, the strategic use of the court reduces accountability, it corrupts the lawmaking process, and it is deeply cynical. Lawmakers should take their constitutional obligations seriously. And if they do not take their own obligations seriously, then they have no right to criticize the judicial branch when it does.

Should the Supreme Court bail out Congress for the unconstitutional provisions of the new detainee legislation? Once again, it has no choice. But the real question is whether the public should bail them out. We can always choose not to.

More Reading on Usa

• USA
• US Congress
• US Supreme Court
• Book Review: Chalmers Johnson's Blowback
• The Home Equity ATM Machine
• Actively Using The Judicature
• Military Contractors Coming Under the Code of Justice
• US State GDP as Countries
• State of the Union as Separation of Powers
• Don't Feed The Trolls
• Questioning an Assumption in Separation of Powers
• The Branch Fight Over Foreign Policy in the United States
• Short Essay on Federalist Paper No.57