If you plan on working your way through the 177 pages of Hamdan opinions today, here’s what you have in front of you:
Justice Stevens wrote the main opinion — 73 pages long — which is a 5-Justice majority opinion in part and a 4-Justice judgement of the Court in part.
Justice Breyer wrote a 1-page concurrence joined by Souter, Kennedy, and Ginsburg.
Justice Kennedy wrote a 20-page concurrence, parts of which were joined by Souter, Ginburg, and Breyer.
Justice Scalia wrote a 24-page dissent on the jurisdictional and abstention issues that was joined by Thomas and Alito.
Justice Thomas wrote a 49-page dissent on the merits, joined by Scalia and in part by Alito.
Justice Alito wrote a 10-page dissent on the merits, joined in part by Thomas and Scalia.
Scalia does not disappoint in his distain of the use of legislative history. Scalia goes after Stevens’ use of Senate floor statements in the opinion, “Of course, this observation, even if true, makes no difference unless one indulges the fantasy that Senate floor speeches are attended (like Philippics of Demosthenes) by throngs of eager listeners, instead of being delievered (like Demosthenes’ practice sessions on the beach) alone into vast emptiness. Whether the floor statements are spoken where no Senator hears, or written where no Senator reads,, they represent at most the views of a single Senator. In any event, the court greatly exagerrates the one-sidedness of the portions of the floor debate that clearly occurred before the DTA’s enactment.”
Just looking at the paper dispersal patterns, it seems to me that this was a case where the strong, effective leadership of the Chief might have been immensely helpful.
I’ve not yet read the opinions themselves, but it seems likely that the same conclusion will likely apply to the substance of this decision as well.
What the legislative history and statutory language show is that Graham and Levin cut a deal that deliberately fudged the applicability to pending cases.
I don’t understand why Scalia and Thomas limited their joining of Alito’s dissent to “Parts I-III” when Alito’s concurrence only HAS Parts I-III (and a very short opening paragraph that contains about nothing to disagree with). What am I missing?
[OK Comments: It could be because he starts off with the intro paragraph on what he would join in the others' opinions. Or maybe there was more to it that he later decided to leave out.]