Since the previous presidential election, candidate John Edwards has criss-crossed this country talking about "Two Americas," and how Americans will have to decide which America should be represented in and defended by the White House after the next election.  But on Wednesday, at the highest court in the land, an oral argument running nearly an hour-and-a-half long made it clear that the next presidential election will also determine which of "Two Supreme Courts" will interpret and defend the U.S. Constitution for the next generation.

Specifically, the nine justices heard the consolidated cases of Boumediene v. Bush, No. 06-1195, and al Odah v. United States, No. 06, 1196.  The cases are the latest iterations of the unlawful enemy combatant challenges that the Court has been grappling with since the War on Terror began in the aftermath of 9/11. 

For those who haven't been keeping score, so far the United States ultimately has lost each and every one of these detainee decisions in the Supreme Court, and Wednesday's glimpse into the justices' thinking did not provide optimism that America's first win would be coming in this current term.

The primary legal question at issue this time around is whether the enemy combatants held at the Guantanamo Bay Naval Base possess a constitutional right to have their habeas corpus petitions heard in federal court. 

On its face, though such a question may seem quite reasonable — after all, the mainstream media constantly reminds us that some of the detainees have been held since just after 9/11, or for the past six years — Justice Antonin Scalia pointedly and correctly explained that the right the detainees "are appealing to ... somehow found its way into our Constitution without ... a single case" supporting it.

Thus, Justice Scalia refused to relent in his questioning about the unprecedented nature of the enemy combatants' claim.  "Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England?" Justice Scalia insisted.  And, with no unqualified answer to this inquiry, the detainees' lawyer eventually had to plead "exhaustion" to escape the persistence.

But for the detainees' lawyer — as well as for as many as five justices — it appeared that whether such a constitutional right had ever been recognized in the past was beside the point.  Instead, the issue that continues to motivate the legions of pro bono lawyers for the detainees, as well as a slim majority of the Court, is compassion.  Legal compassion that means these detainees, who have been plucked elsewhere from a global war against Americans, should be treated with all the legal protections and niceties due to American citizens living and working in our neighborhoods.

In fact, at the very beginning of his argument, the lawyer for the enemy combatants rattled off a list of minimum constitutional rights the Guantanamo detainees were entitled to claim.  And, what a list it was. 

These enemy combatants — who are not American citizens and who have not set foot on American soil — are, according to their lawyer, entitled to "meaningful notice of the factual grounds for detention, a meaningful opportunity to present evidence in response to that before a neutral tribunal with the assistance of counsel, [and] that determination would certainly be" reviewable in American courts.

Indeed, the full extent of the necessary implication of the detainees' claims became abundantly clear when Justice Samuel Alito asked the lawyer for the enemy combatants: "What if, in a future war, many of the soldiers ... don't wear uniforms?  What if it's a war like Vietnam and thousand of prisoners are taken into custody and they are brought to prisoner-of-war camps ... as occurred in World War II?  Every one of them under your theory could file a habeas petition."  To this, the detainees' lawyer agreed — never mind that it never occurred to prisoners of war from World War II and Vietnam to file a habeas petition.

Even more incredibly, it appeared that a five-justice majority of the Court likewise agreed that, even burdened by such ridiculous and potentially catastrophic legal implications, these enemy combatants possess a constitutional right to fight their detention in our federal courts.  And, if the justices so rule later next year, this election should be about and must be about our "Two Supreme Courts" — one that puts America and Americans first, and the other that doesn't.  Because in our ongoing War on Terror, the latter Supreme Court could be our most dangerous enemy, not to mention the most powerful friend the terrorists have.