0 world at large, and i think it s six months, maybe a year, but that goes on at least on an annual basis, and if these a determination that this person still represents a threat to the united states rp they are continued to be confined. that s the way the system works. are you okay with that? as a policy matter, senator? i m not speaking to my views, that s my understanding is that the periodic review system is an executive branch determination of whether or not they are going to continue to hold people does that make sense to you as a way to deal with these detainees? i m not in a position to speak to the policy or the discretion of the executive branch regarding how they are going to handle detainees. the reason i mention it is because in the brief you argued that the executive brarn doesn t have that option, that if you had had your way, the executive branch could not do periodic reviews about the danger the detainee presents to the united states. they would have to make
entire tenure trying to undo. both are in the cross hairs. it s very interesting that, you know, senator richard blumenthal, michael, is saying that he believes that these nominees are being instructed by the trump administration to avoid that question. but, you know, is it an open question right now as to whether trump judicial nominees feel bound by precedent even in very well established cases like brown v. board and roe v. wade? well, i think they re suggesting that they re not. they should be. we have a principle called starry decisis. most justices, including chief justice john roberts, seem to appreciate that principle, they ve talked about being an institutionalist and respecting the court, respecting the precedent. but it seems like some of these nominees want to ignore that principle. and i think that is really problematic but i do think it s
to horrific decision of the supreme court. in fairness to justice jackson, maybe he was thinking as i originally thought about the expression as being binding on lower court judges. trial judges, appellate court judges and the supreme court does have the final word in that food chain of the judiciary. but not in terms of the fundamental authority of the american people on what laws should govern them. i think that s right. justice jackson is one of our greatest. to question anything, whether his matsu dissent or youngstown or justice jackson wrote some of the greatest opinions and the example of judicial independence as well. on the one line, i take your point. let me just ask you one last question. we talked a lot about the role of precedent and senator feinstein talked about starry
you know, i really just think it s so impossible to know what a future justice will do in terms of how they apply the special factors of starry decisis to any particular precedent. roe v. wade is a precedent on the books. i really do think every justice on trump s list would be faithful to the principles of starry decisis, which only allow you to overturn a precedent under extraordinary circumstances. do you think justice kennedy has viewed himself as being the swing vote? i remember justice kennedy saying, i don t swing, it s the cases that swing. he viewed himself, i think, as very consistent, very principled, and on the legal principles that he believed in. and i really do think that donald trump is not going to ask the next candidate how are you going to rule on this issue? what he s going to ask, will you
what it takes to overturn precedent when the role of the court is to in many ways promote what is called starry decisis, meaning that they will follow what has been done before. there will still have to be a concerted effort across different states to bring different legislative acts that restrict the right of a woman to choose. roe v. wade is about the right to privacy. and those fundamental principals may stillintact. and the challenge will be not just in trying to figure out what president trump has promised his base, but the role of an autonomous court which we all would like to have that don t necessarily broadcast what they are going to do. and frankly justice kennedy has been he has been a departure as a swing vote.