The Supreme Court has denied the petition for a writ of certiorari in the latest round of the Padilla case. Justices Breyer, Souter, and Ginsburg voted to grant, and had their votes noted on the record; Justice Ginsburg wrote a brief explanation of her vote here. Justice Kennedy wrote a short opinion explaining his vote to deny the petition, joined by Justice Stevens and Chief Justice Roberts. The gist of Kennedy’s opinion is that this is a really important case, but that Padilla’s indictment makes this a hard case to grant for procedural reasons:
Even if the Court were to rule in Padilla’s favor, his present custody status would be unaffected. Padilla is scheduled to be tried on criminal charges. Any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect,at this stage of the proceedings. * * *
That Padilla’s claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical. This is especially true given that Padilla’s current custody is part of the relief he sought, and that its lawfulness is uncontested.
Justice Kennedy’s opinion also warns that the courts will be very responsive if the Bush Administration tries to alter Padilla’s status in a way that might affect Padilla’s ability to have his rights adjudicated:
Padilla is now being held pursuant to the control and supervision of the United States District Court for the Southern District of Florida, pending trial of the criminal case. In the course of its supervision over Padilla’s custody and trial the District Court will be obliged to afford him the protection, including the right to a speedy trial, guaranteed to all federal criminal defendants. See, e.g., U. S. Const., Amdt. 6; 18 U. S. C. §3161. Were the Government to seek to change the status or conditions of Padilla’s custody, that court would be in a position to rule quickly on any responsive filings submitted by Padilla. In such an event, the District Court, as well as other courts of competent jurisdiction, should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised. Padilla, moreover, retains the option of seeking a writ of habeas corpus in this Court. See this Court’s Rule 20; 28 U. S. C. §§1651(a), 2241.
This is an interesting development, although it’s hard to hard to draw many lessons from it, I think. Some will try to look for significant signs in the fact that both Stevens and Chief Justice Roberts joined Kennedy’s opinion, but I don’t know if that is justified: Kennedy’s opinion strikes me as a pretty traditional explanation for why granting the case may be inappropriate, so it’s hard to read very much into it.
Thanks to How Appealing for the tip.