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.
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I don’t think the denial of cert itself is remarkable. What is remarkable is:
1) The court kept the case alive — or at least in suspended animation as “hypothetical” for the time being — rather than declaring it moot. Mootness was what the government sought, even at the price of forgoing its favorable precedent in the Fourth Circuit, so the Supreme Court would never reach the merits.
2) Not only was the concurring opinion by Kennedy (joined by Roberts and Stevens) not required to be written at all, it contained a double message. That message was both a warning against reclassifying Padilla back into military custody, and a signal that the new chief justice is no sure vote for the government on the larger issues of executive war powers.
3) The Kennedy/Roberts/Stevens opinion mentioned “that Padilla’s claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts.” That indicates that these three justices are at least concerned that there are separation-of-powers issues beyond the question settled in Hamdi — a question on which the government already lost 8-1. We already knew where Kennedy and Stevens stood in Hamdi; we now have another clue that Roberts is sympathetic to their views.
4) We have no new information about Alito, the other new justice not on record in Hamdi. The mere fact that he voted against cert, without comment, is no indication of what he thinks of the merits. Scalia also so voted, but one need only read his dissent (joined by Stevens) in Hamdi to know where he stands. That dissent was the opinion least favorable to the government.
I wouldn’t have expected Stevens in the 6 or Breyer in the 3.
I suppose it makes sense that Breyer has–judging from this and his questions during Hamdan–about had it with the administration on these issues. He’s notorious for doing extracurricular factual research, and the more of that you do, the worse the administration looks on this stuff.
He clearly knew all about the Uighur cases, and that the DTA deprives prisoners of any remedy after the CSRT clears them.
I had briefly worried about him, when I was doing justice counting on Padilla; I-thought maybe he wasn’t as certain a vote to dismiss as I thought. Looks like I didn’t have to worry—not that it makes much difference now.
Katherine,
I wasn’t that surprised that Breyer, part of the plurality that upheld Hamdi’s detention as an enemy combatant, would vote to take the Padilla case.
I surmise that he thought the two cases were distinguishable, and any jurist who can distinguish between one Ten Commandments display and another surely can distinguish between an Afghan battlefield and O’Hare Airport.
As far as vote-counting goes, I think DOJ obviously has made its own count, and would rather make its arguments anywhere but the Supreme Court.
I wasn’t surprised by Breyer’s vote. The vote to grant cert or not at this point depends first on what you think about the argument that the case is moot. Breyer is nothing if not a pragmatist, and I don’t think an arguable mootness claim would stop him from granting cert if the issue is important. “Extracurricular fact research” seems irrelevant to me; the Justices must be familiar with the history of the case — they already decided it once! — and the administration’s claim of right to detain a US citizen, arrested on US soil, without charging is certainly important enough to be worth settling.