OrinKerr.com

Justice Kennedy, the Separation of Powers, and the War on Terror

Yesterday I linked to what I described as “the key moment in the Hamdan argument,” and today I want to explain why I think that moment is particularly important. 

As most readers know, Justice Kennedy is expected to be the critical vote in the Hamdan case.  We can pretty much assume that Justices Stevens, Souter, Ginsburg, and Breyer will vote against the Administration.  And based on the oral argument, past opinions, and, in one case, a certain speech in Switzerland, it also seems quite likely that Justices Scalia, Thomas, and Alito will vote in favor of the Administration.  This means that Kennedy has the key vote; if he votes to reverse, he is probably the fifth vote.  With Justice Stevens in control of the opinion (as the most senior Justice in the majority), he would probably assign the opinion to Kennedy. 

What kind of opinion would Justice Kennedy write?  If you look over Justice Kennedy’s past opinions on the role of the courts in international affairs, Kennedy has charted out a pretty consistent course.  In this context, Justice Kennedy tends to eschew bright line rules in favor of a functional and pragmatic framework: The role of the courts is determined by a pragmatic balancing of interests, and the courts play a role to the extent such a role needed to uphold the rule of law value of the courts without unduly interfering with the other branches.

The most obvious example of this balancing approach is Justice Kennedy’s concurrence in Rasul v. Bush, the first Guantanamo opinion in 2004.  Justice Kennedy’s opinion is focused on maintaining a balance in which all three branches play a role.  On one hand, “there is a realm of political authority over military affairs where the judicial power may not enter,” where executive interests are at the utmost.  On the other hand, “there are circumstances in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated.”  The difference between the two is a functional one, implicated by context: in the Rasul case, the key issues were whether the place of detention was more like a battlefield and whether there were important judicial issues to resolve.  The framework is very much a multi-factor balance, based on whether a judicial function would “align[] with the traditional function of habeas corpus” and whether the military needs could coexist with a judicial role.

You can see a similar framework 15 years earlier in Justice Kennedy’s concurrence in United States v. Verdugo-Urquidez, which considered whether a Mexican national had Fourth Amendment rights in the search of his home in Mexico arranged by United States officials.  Although Justice Kennedy signed on to Rehnquist’s bright-line ruling, Kennedy’s concurrence suggested that the role of the courts in such cases should be flexible and pragmatic.  “[W]e must interpret constitutional protections in light of the undoubted power of the United States to take actions to assert its legitimate power and authority abroad,” Kennedy wrote.  At the same time, the Court could not eliminate constitutional protections altogether: ”The United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings are governed by the Constitution.”  A warrant wasn’t required under the Fourth Amendment not because the defendant was entirely unprotected by the Fourth Amendment, but because “[t]he conditions and considerations of this case would make adherence to the Fourth Amendment’s warrant requirement impracticable and anomalous.”

I think we can even see this pragmatic approach when Justice Kennedy was on the Ninth Circuit.   In United States v. Peterson, 812 F.2d 486 (9th Cir. 1987), then-Judge Kennedy decided a case involving wiretapping in the Phillipines by a joint U.S-Phillippines task force.  I’m not positive about this, but as far as I can tell, there were no prior cases on what type of legal framework would apply to such a case: there was a lot of room to establish new law in the case.   Faced with wiretapping abroad by a joint U.S. and foreign investigation, Kennedy did not hold that the Fourth Amendment was completely inapplicable.  Nor did he impose a strict warrant requirement.   Rather, Judge Kennedy held that the standard was reasonableness, and that the reasonableness of the monitoring was to be determined by reference to the applicable foreign law.  The foreign law provided the standard of reasonableness and therefore the legal standard U.S. investigators were required to follow.

Justice Kennedy’s pragmatic separation-of-powers approach explains why I think the exchange I quoted yesterday is particularly important.  It suggests that Justice Kennedy sees an important role for the courts in the Hamdan case.  When you consider that exchange in light of Kennedy’s prior opinions, it seems likely (at least to me) that he will vote to reverse.