Kennedy and Kennedy

There should be some rule against assigning an opinion to a justice with the same name as the petitioner. We fear they may be some confusion in our discussion of Justice Kennedy and Kennedy vs. Louisiana (we have some issues with both).

Just to make things extra confusing, we threw in President Kennedy's name in our last post!

WHERE WE LEFT OFF: Justice White's (controlling) plurality opinion in Coker v. Georgia said that the death penalty for rape was cruel and unusual punishment that violated the 8th amendment. In the crucial part of the opinion, White noted seven separate times that the death penalty was not appropriate for rape unless it involved taking a human life.

One might think that Coker established a rule - the death penalty was not OK unless it concerned a crime where someone was killed. One might think that this rule could lead to an easy conclusion in Kennedy v. Louisiana, which involved the rape of a child (the rape in Coker involved a 16-year-old, and a lot of other awful facts).

One might think these things, unless one were Justice Kennedy. Instead, Kennedy specifically denies that Coker controls the outcome of this case! He holds that Coker only applies to rape of adult women (or at least women 16 years or older. Coker, by the way, did not report the age of the victim, probably because it didn't matter).

Is there a method to this madness?

Well, there is an explanation: Justice Kennedy, for better or worse, is devoted to a death penalty analysis that places great weight on "objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions." This was the most important factor in striking down the death penalty in two earlier cases, Roper (involving offenders under the age of 18) and Atkins (mentally retarded offenders).

In practice, what this means is that the court looks at the laws of all the states that have death penalties, and counts how many would allow the death penalty under the circumstances (for example, for offenders under the age of 18). The court also looks for trends - are a lot of states changing their laws because of concerns over the appropriateness of the death circumstances? (In Roper, Kennedy looked at standards in foreign countries as well, which of course was the greatest heresy in the history of the Supreme Court).

Coker actually started this objective test - in the first part of his opinion, White looked at rape statutes in different states, and determined that the Georgia was the only state that allowed the death penalty for the rape of an adult woman (this was the only part of the opinion that placed any importance on the age of the victim. It was not the most important part of the opinion).

On one hand, this type of analysis makes sense: if the 8th amendment bars "cruel unusual" punishment, isn't it important to figure out exactly how unusual a given punishment is? And if everyone else has agreed that the death penalty for a particular crime or person is unnecessary, doesn't that have some bearing on whether it is cruel? On the other hand, this type of analysis has it critics. To Scalia and the High Federalists, it's heresy - the 8th amendment means only what the framers of the constitution thought it meant (short answer: it doesn't prohibit any type of punishment that currently exists in this country). Others might raise more practical concerns. How do you determine whether a "consensus" exists? Also - and particularly important for the Kennedy case - is this consensus business a one-way street? That is, does it just work to limit the death penalty (as it did in Roper and Atkins) or can there be a consensus to expand the use of the death penalty?

We're not interested right now in wading into this debate (but perhaps we'll offer some thoughts later) - so back to Kennedy. A total of six states (mostly in the deep south) authorized the death penalty for child rape in 2008. Louisiana's law was by far the broadest. Essentially, it gave the jury the authority to hand down a death sentence for a first-time offender who raped a child 12 years old or younger, without needing to find any other aggravating factors. Most of the other states required a prior conviction for the death penalty to be an option. Indeed, this requirement makes a death penalty prosecution very unlikely in those states, as even first-time child rape convictions generally lead to huge sentences that keep offenders behind bars for the rest of their lives.

The defendant in Kennedy (who does not appear to have any prior convictions), thus, was facing the death penalty for a crime that would not be a death penalty offense almost anywhere else in the country. So far, it's not looking good for the death penalty. But here's the rub - the government argued that a number of other states had considered and rejected the death penalty because of Coker. In other words, the reason that more states had not allowed the death penalty for child rape was not because they thought it was excessive, but because they thought the Supreme Court had told them couldn't do it.

Justice Kennedy denies that this is the case - he says that the other states reached this decision on their own. But as part of his argument, Kennedy has to deny that Coker told the states anything about child rape! Hence,

Coker's analysis of the Eighth Amendment is susceptible of a reading that would
prohibit making child rape a capital offense. In context, however, Coker's holding was narrower than some of its language read in isolation. The Coker plurality framed the question as whether, "with respect to rape of an adult woman," the death penalty is disproportionate punishment. Id., at 592. And it repeated the phrase "an adult woman" or "an adult female" in discussing the act of rape or the victim of rape eight times in its opinion. See Coker, supra. The distinction between adult and child rape was not merely rhetorical; it was central to the Court's reasoning. The opinion does not speak to the constitutionality of the death penalty for child rape, an issue not then before the Court. In discussing
the legislative background, for example, the Court noted:

As we've stated, this paragraph is simply incompatible with any reasonable reading of Coker. But this statement is necessary for Kennedy to reach his conclusion the way he wants to reach it.

THE "D" WORD: Alito, writing the dissent, has the same problem in reverse. He wants to argue that more states would have imposed the death penalty for rape but for Coker. But if this is the case, shouldn't the Supreme Court follow Coker as well? The Supreme Court, of course, can overrule its decisions, but the doctrine of stare decisis states that the court should generally have a good reason for doing so. A death penalty law passed by six states, mostly in the deep south, and mostly requiring circumstances not present in the Louisiana law, is hardly evidence of a watershed rethinking of the death penalty. Alito dodges this question by using the "D" word:

The implications of the Coker plurality opinion were plain. Justice Powell, who
concurred in the judgment overturning the death sentence in the case at hand,
did not join the plurality opinion because he understood it to draw "a bright
line between murder and all rapes--regardless of the degree of brutality of the
rape or the effect upon the victim." If Justice Powell read Coker that way, it was reasonable for state legislatures to do the same.
Understandably, state courts have frequently read Coker in precisely this way. The Court is correct that state courts have generally understood the limited scope of the holding in Coker, ante, at 18, but lower courts and legislators also take into account--and I presume that this Court wishes them to continue to take into account--the Court's dicta. And that is just what happened in the wake of Coker. Four years after Coker, when Florida's capital child rape statute was challenged, the Florida Supreme Court, while correctly noting that this Court had not held that the Eighth Amendment bars the death penalty for child rape, concluded that "[t]he reasoning of the justices in Coker v. Georgia compels us to hold that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault and is
therefore forbidden by the Eighth Amendment as cruel and unusual punishment."
Numerous other state courts have interpreted the Coker dicta similarly.

Despite what "numerous" states have concluded, Alito tells us that the reasoning in Coker (the reasoning that White repeated seven times) is "dicta" rather than the holding of the case.

We'll admit it - we have no idea what "dicta" is anymore. Back in law school, we were told that "dicta" is superfluous language not needed or used to decide a case. So, for example, if Judge White in deciding the Eighth Amendment issue in Coker, had offered his opinion on the meaning of the reverse commerce clause, or his impressions of the latest Woody Allen film, that would be dicta, and no one else would obligated to follow it. We had never understood dicta to include the reasoning of a case - the explanation and the rules used to reach the result in a particular case. This reasoning, we had thought, was binding - even if it could be used to decide cases with different facts than the one the case was decided upon. As we have stated ad naseum in our last two posts, the "taking of a life requirement" in Coker (repeated seven times!) is not superfluous - it is the basis of the decision.

Over the past few years, the Supreme Court (in our view) has taken an increasingly broad view of dicta. Alito and Roberts, the new judges, are the worst but by no means the only offenders. Under this new view, the reasoning in an old case become dicta if the result could have been reached by some other method. It isn't necessary to even state the "some other method" (Alito doesn't bother to explain how the result in Coker was reached but for the language he insists is dicta). What we used to think was the "result" of a case is now the "holding" (see Alito's quote above). What we used to think was the "holding" is now "dicta"

NEXT: WHY? We'd like to wrap up Kennedy so we can discuss Heller and a few other cases. In our next post, we (offering some speculation) try to answer the "why" questions? Why was White bothered by the death penalty for rape? Why is Kennedy bothered by it? And why is everything "dicta" with Roberts and Alito?

Kennedy v. Louisiana, and Coker

Judge White's opinion in Coker v. Georgia is controlling precedent. Yes, only four judges signed it, but 2 others wanted to go much farther in banning the death penalty. Despite the issues raised in oral argument which we discussed yesterday, this fact should be beyond dispute.

White wrote an opinion that struck down the death penalty for rape. The specific case before the court involved the rape of an adult woman (Or did it? - more on this later). But that doesn't mean that the rule used to decide the case couldn't be broader - that it couldn't be used to decide whether the death penalty was OK for other kinds of crimes - or at least other kinds of rape. The case before the court in yesterday's Heller decision, for example, only concerned a specific gun ban in the District of Columbia - but everyone agrees that rule in Heller could be used to strike down other types of gun prohibitions in other places.

To be clear, some of White's opinion dealt specifically with adult rape. In the beginning of his analysis, for example he looked for "objective evidence" of current feelings on the death penalty for rape. He concluded that Georgia was the only state that currently allowed the death penalty for the rape of an adult woman, while acknowledging that three other states allowed the death penalty where the victim was a child.

But that finding was not the basis of the opinion. "The Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment, " wrote White. In the key portion of Coker, the one cited by everyone, including Kennedy's opinion, he said the following (our numbering will be explained below):

We do not discount the seriousness of rape as a crime. It is highly
reprehensible, both in a moral sense and in its almost total contempt for the
personal integrity and autonomy of the female victim and for the latter's
privilege of choosing those with whom intimate relationships are to be
established. Short of homicide, it is the "ultimate violation of self." It is
also a violent crime because it normally involves force, or the threat of force
or intimidation, to overcome the will and the capacity of the victim to resist.
Rape is very often accompanied by physical injury to the female and can
also inflict mental and psychological damage. Because it undermines the
community's sense of security, there is public injury as well.

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life (1). Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person (2). The murderer kills; the rapist, if no more than that, does not (3). Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over (4) and normally is not beyond repair. We have the abiding conviction that the death penalty, which "is unique in its severity and irrevocability," is an excessive penalty for the rapist who, as such, does not take human life (5).

. . .

Neither of [the aggravating circumstances of Coker's crime], nor both of them together, change our conclusion that the death sentence imposed on Coker is a disproportionate punishment for rape. Coker had prior convictions for capital felonies - rape, murder, and kidnaping - but these prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life. (6)

. . .

It is difficult to accept the notion, and we do not, that the rapist, with or without aggravating circumstances, should be punished more heavily than the deliberate killer as long as the rapist does not himself take the life of his victim. (7)

White unequivocably says that rape is awful - in fact, he says that it's worst thing that one human being can do to another short of killing them. But do you see the secret message of his opinion? The one he repeats seven times! Rape is not murder! Why? Because rape does not (necessarily) involve killing someone!

Try as we might, we cannot interpret this opinion as anything other than a categorical prohibition of the death penalty for crimes that do not cause death. That would include rapes where the victim is a child. If this language does not convince you, however, consider three other things:

Powell's opinion: As we noted yesterday, Judge Lewis Powell agreed that the death penalty was unconstitutional for Mr. Coker under the facts of the case. He thought, however, that it might be OK for other types of rape (ones committed with "excessive brutality" or where the victim "sustained serious and lasting injury"). He described White' opinion:

The plurality, however, does not limit its holding to the case before us or to
similar cases. Rather, in an opinion that ranges well beyond what is necessary,
it holds that capital punishment always - regardless of the circumstances - is a
disproportionate penalty for the crime of rape.

We don't think Powell goes quite far enough here - the rule in White's opinion would apply to all non-homicide crimes, not just rape. But Powell does concludes that the death penalty is prohibited for all rapes, which would include the child rape involved in Kennedy v. Louisiana.

The facts of Coker: Mr. Coker (1) was already a convicted murderer and rapist who (2) escaped from prison, (3) broke into the home of the victim, (4) held a knife up to her, (5) raped her (6) in front of her husband, then (7) stole her car, and (8) kidnapped her.

We'll add one other fact, a fact we were not aware of until we read the majority opinion in Kennedy. The victim in Coker was only 16 years old - a minor under Georgia law (she was also married and had a son).

Granted, the facts of the crime in Kennedy (which involved an eight-year victim) were also horrible (the opinion discusses them at some length). We have no opinion on which of these crimes is more awful. But if the first crime is not a death penalty offense, it's not obvious to us why the second one would be. Indeed, it's not clear to us how any other rape (that did not also involve killing) could be so much worse than that in Coker that it would literally mean the difference between life and death. The place for such distinctions in Coker was Justice Powell's opinion - which he wrote because he disagreed with White's controlling opinion. (Question: What was Powell smoking when he concluded the rape in Coker did not involve excessive brutality or lasting harm to the victim?)

Subsequent Opinions: We'll quote ourselves on this one:

Commentators and courts have generally agreed that the Coker decision prohibits
the death penalty for crimes against individuals that do not involve the taking
of another human life, such as kidnapping or the rape of a child (citation
ommitted).

If you don't believe us, though, he's what a Supreme Court justice had to say about the issue in Kennedy:

The implications of the Coker plurality opinion were plain. Justice Powell, who concurred in the judgment overturning the death sentence in the case at hand, did not join the plurality opinion because he understood it to draw "a bright line between murder and all rapes--regardless of the degree of brutality of the rape or the effect upon the victim." If Justice Powell read Coker that way, it was reasonable for state legislatures to do the same.

Understandably, state courts have frequently read Coker in
precisely this way

So Kennedy was easily decided? No - we because we have yet to reveal the surprise twist! The author of the language above was Alito - who wrote the dissent, which wanted to uphold the Louisiana child rape death penalty! J. Kennedy, who wrote the opinion striking down the law, wrote this about Coker

Coker's analysis of the Eighth Amendment is susceptible of a
reading that would prohibit making child rape a capital offense. In
context, however, Coker's holding was narrower than some of its language read in
isolation. The Coker plurality framed the question as whether, "with respect to
rape of an adult woman," the death penalty is disproportionate punishment. And
it repeated the phrase "an adult woman" or "an adult female" in discussing the
act of rape or the victim of rape eight times in its opinion. The distinction between adult and child rape was not merely rhetorical; it was
central to the Court's reasoning. The opinion does not speak to the
constitutionality of the death penalty for child rape, an issue not then before
the Court.

As we discuss above, this is simply not a convicing argument. But put that aside - why is J. Kennedy, in ruling the death penalty for child rape unconstitutional, dismissing Coker, which is loaded with language and facts directly on point for what he wants to do?

There is an answer to this question, which we will discuss in our next post. Sneak Preview: Kennedy is Making Things Harder Than They Need to Be.

WHO IS BYRON WHITE?: The author of Coker's controlling opinion was appointed by President Kennedy and served on the Warren Court, but he was no liberal. "His jurisprudence has sometimes been praised for adhering to the doctrine of judicial restraint." No friend of criminal defendants, he dissented in the famous Miranda decision, and was also one of two judges who dissented in Roe v. Wade

WHAT'S WRONG WITH THE DEATH PENALTY FOR RAPE?: White's opinion discusses the obvious at some length - rape is not as bad as murder because it does not involve killing. But why does this necessarily mean that rape, unlike murder, cannot be a death penalty offense? White's opinion is opaque on this point - but he does drop a hint as to his reasoning at the end. With just a bit of speculation, we'll try to answer this question next week.

Kennedy v. Louisiana

As a policy matter, we're inclined to agree with the result reached by Judge Scalia in District of Columbia v. Heller (as for the correctness of his constitutional conclusion, we don't know - no matter what anyone tells you, it's not an easy question). The reasoning in his opinion, however, is less than perfectly clear - in fact, in two places, we find important contradictions that are difficult to resolve. We may not be able to get to this opinion for awhile, so for now we'll leave you with two questions:

(1) Why doesn't United States v. Miller (an opinion that Scalia criticizes but does not overrule) contoll the outcome of this case?

(2) What effect will this decision have on federal laws that categorically outlaw firearm ownership for certain classes of people? (for example, convicted felons).

BACK TO KENNEDY:

The starting point for our discussion has to be Coker v. Georgia, the 30-year-old decision that everyone agrees is most on point for the child rape law at issue in Kennedy. Coker held that the 8th amendment barred the death penalty for the crime of rape - at least for rape concerning adult women.

(We should note that we have a history with Coker. Six years ago, we authorized a note (available here) published in a certain law review analyzing Coker in some depth. We'd like to say that we took the legal world by storm - but our legacy consists of few cites in a few scattered law reviews (one of which confused us with a professor!) Indeed, the federal courts - culminating with Kennedy - have been quite busy dismantling the assumptions we made in our Note since its publication.)

Coker involved an horrific crime. The defendant, Mr. Coker, was serving time for several violent offenses in prison. He broke out prison, broke into the home a young family, threatened the young wife with a weapon, then raped her with a knife in front of her husband, then stole her car and kidnapped her. He did not, however, kill anyone. Nevertheless, he was sentenced the death penalty after being convicted of this crime.

The court overturned the death sentence by a vote of 7-2. Of the seven judges - two judges (William Brennan and Thurgood Marshall) overturned the death penalty because they believed the penalty was cruel and unusual in all circumstances. One judge, Lewis Powell, thought that the death penalty was disproportionate for this particular rape, but thought it might be OK if there were other "aggravating circumstances" (more on him later). Four other judges joined an opinion by Judge White. Everyone agrees that White's opinion held that the death penalty for rape (at least for adult women) was unconstitutional.

MATH TEST: How many judges agreed with White's opinion - that the death penalty for rape (at least for adult women) was always unconstitutional? The answer is 6 - Brennan (1), Marshall (2), and the four judges who joined White's opinion (3-6 - that's White, Stevens, Stewart, and Blackmun). Brennan and Marshall did not join White's opinion, of course, but that's because they wanted to go farther - to strike down the death penalty for rape and every other crime.

If 5 judges agree on a decision, it constitutes precedent that all courts (including, usually, the Supreme Court) are bound to follow. Here, 6 judges agreed that White's opinion about rape was correct (two didn't join it - but only because they didn't think it went far enough). 4 + 2 = 6. 6 is greater than 5.

All of this, of course, is blindingly obvious - unless you're on the Supreme Court! At oral argument for Kennedy v. Louisiana (available here) not one but two judges suggested that White's opinion was not binding precedent! Note, particularly, Judge Scalia's suggestion that Brennan and Marshall somehow don't count!

To put it a different way - if Brennan and Marshall had joined the majority opinion, there would be an opinion by 6 judges, and everyone (presumbly even Scalia) would have to agree that it was a binding precedent. But because Brennan and Marshall subscribed to a view that was in all ways more restrictive of the death penalty, Scalia suggests they don't count at all - and White's opinion can be ignored.

To be clear, Scalia's (apparent) view appears nowhere in the Kennedy opinion. Indeed, thoughts expressed at oral argument does not always reflect a judges's true views. That said, Mr. Kennedy's lawyer had to spend a fair portion of his argument dealing with these inane issues raised by Scalia (and the other justice, whose name we'll withhold).

NEXT: Coker was not off to a good start with the Kennedy court. We examine what White's controlling opinion in Coker actually said - and what the Kennedy court did with it.

Indiana v. Edwards: What Was Left Unsaid

Kennedy v. Louisiana is one of the big ones, sure to inspire a lot of predictable commentary on the role of the Supreme Court in our society. We'll definitely be covering it, perhaps as soon as tomorrow.

Our impression, after reading the opinion? Justice Kennedy reaches the correct result, but his opinion is a classic example of his tendency to Make Things Harder Than They Need To Be. In our view, there was a much more obvious way to reach this conclusion - one that Kennedy rejects. Here a hint: Alito makes the argument for Kennedy - in his dissent!

Giles v. California may also merit a post or two. The dispute in this case between the justices seemed to be very narrow - but the case contains five different opinions! Can anyone explain why Thomas and Alito need to write separate concurrences making exactly the same point?

BACK TO EDWARDS: Our sarcasm may have got the best of us in our last post - we did not mean to imply, as a general matter, that Judge Breyer's judicial philosophy was inferior to Judge Scalia's. Indeed, we generally find ourselves on Breyer's side on the major disputes.

In this particular case, however, we believe Scalia's instincts for bright-line rules fits the case. Criminal defendants generally have the right to represent themselves. As everyone understands, this is not because representing yourself is a good idea, or because it leads to fair trials. Indeed, it's almost never a good idea. Instead, criminal defendants have the right to make choices - even bad ones.

As a new lawyer in the office of the New Hampshire Public Defender, we often became upset when our clients made bad decisions - going to trial instead of taking a plea offer, or taking plea offer instead of going to trial. (Making bad decisions was a common theme in many of our clients' lives). Our managing attorney would frequently needed to remind us that our clients ultimately had to be control of their own cases.

Breyer's opinion takes this right away from (some) mentally ill defendants. He justification - that such defendants are unequipped to represent themselves, and that they would make a "spectacle" of themselves, is beside the point (and is true of many people who are not mentally ill). As our managing attorney would tell us, "Our clients have the right to make bad decisions."

That said, we were struck by the following passage in his opinion:

An amicus brief reports one psychiatrist's reaction to having observed a patient
(a patient who [was competent to stand trial]) try to conduct his own defense: "[How in the world can our legal system allow an insane man to defend
himself?"

It's a good question, and a question that Scalia's (otherwise compelling) dissent isn't quite able to answer. We would address it by raising two points, which are not covered in either opinion in Edwards.

First, exactly how much good did appointing a lawyer do for Edwards? In our five years as a public defender, we've represented many people with mental illness of varying degrees (there is a causal connection). Representing and communicating with seriously mentally ill persons - particularly those with paranoid or irrational beliefs - is often very difficult. Such clients will often refuse to share information with their attorneys - indeed, they sometimes would refuse to meet with us altogether. We would imagine that representing would be even harder when the client is forced, against his will, to be represented by an attorney.

For this reason, we suspect that the relationship between Mr. Edwards and his attorney was something less than ideal. (Indeed, Scalia discusses a disagreement between the attorney and the client about what defense to present). Creating a dysfunctional attorney-client relationship hardly solves the problem Breyer raises. If we were more cynical, we'd say that the holding only sweeps the problem under the rug. Instead of making the court deal with the defendant's mental illness, the opinion foists him off on a court-appointed lawyer.

But enough about lawyers. What about Mr. Edwards? Remember, everyone in this case agrees that Edwards was seriously mentally ill. He has a history of paranoid schitzophrenia. He had twice been found incompetent to stand trial. He had written motions to the court that were pure goobltygook (Breyer includes one such motion in his opinion). According to Breyer, Edwards was so mentally ill that he was "unable to carry out the basic tasks" of self-reprentation, and was at risk to make a spectacle of himself in the courtroom.

Assuming that Edwards is dangerous, one might think that he belongs in a mental institution, where he will receive treatment (while being separated from society). Yet as a result of his trial, Edwards will likely spend the rest of life in a prison, where he will likely receive no such treatment.

To paraphrase the doctor quoted above: How in the world can our legal system treat an insane person this way?

We don't have a perfect answer for either question. But we don't think that Breyer's opinion (or Scalia's, for that matter) does either.

NEXT: We discuss Kennedy (the opinion and the author). Suggested reading - Coker v. Georgia.

Indiana v. Edwards

We have no dispute with the old adage: "The man who represents himself has a fool for a lawyer." Nevertheless, the Supreme Court has held that criminal defendants have the right to represent themselves at their criminal trial, if they so choose. In Indiana v. Edwards, the Supreme Court found an exception to this rule.

The background: Mr. Edwards was charged with attempted murder. He was also mentally ill. On two different occasions, the courthad found him incompetent to stand trial. "Incompetent" means that the court found he either lacked a rational understanding of what was happening, or that he was unable to assist his lawyer. The court committed Edwards to a state hospital, where he was treated. The court finally determined that he OK to stand trial. "OK", of course, did not mean that he was cured of his schitzophrenia.

Mr. Edwards then told the judge that he didn't want a lawyer - he wanted to represent himself. The judge, citing his history of mental illness, would not allow him to do so, and ruled that a lawyer had to handle this case. Despite this, Edwards was eventually convicted of all charges.

Edwards appealed, arguing that he had a Constitutional right to defend himself at trial. It seemed like he a had a good argument, since the Supreme Court had decided, in a case called Faretta, that criminal defendants have a Constitutional right to defend himself at trial. But that was before Justice Breyer got ahold of the case.

As detailed here, the government had asked the court to overrule Faretta. Breyer refused to do this, but he did carve out an exception for mentally ill defendants. He provided three reasons.

First, he said that prior cases "point slightly in the direction of our . . . . answer." We would think that Faretta points more than slightly in the other direction, but we'll leave this point for our readers to decide.

Second, after citing a number of scientific studies, Breyer states

"In certain instances an individual may well be able to satisfy
Dusky's mental competence standard, for he will be able to work with
counsel at trial, yet at the same time he may be unable to carry out the
basic tasks needed to present his own defense without the help of
counsel.

For our part, we have no reason to disagree with this statement But why does it matter? Is Breyer saying that some people are incapable of running their own defense? Guess what? Almost everyone (lawyers included) are incapable of effectively running their own defense in a criminal trial. Without further explanation, this comment is beside the point.

Breyer last argument is his attempt to further explain this point. In our view, its the real reason for his decision.

Third, in our view, a right of self-representation at trial will not "affirm the
dignity" of a defendant who lacks the mental capacity to conduct his defense
without the assistance of counsel. To the contrary, given that defendant's
uncertain mental state, the spectacle that could well result from his
self-representation at trial is at least as likely to prove humiliating as
ennobling. Moreover, insofar as a defendant's lack of capacity
threatens an improper conviction or sentence, self-representation in that
exceptional context undercuts the most basic of the Constitution's
criminal law objectives, providing a fair trial.

Shorter Breyer: It's for their own good!

Language like this, of course, is Scalia-bait. Many commentators continue to express surprise when Scalia sides with a criminal defendant in an appeal. Yet he's been doing this (on certain issues), for roughly forever. Here, Breyer's mushy references to fair trials, individual dignity, underlying objectives, and rainbows merits this response:

[T]he loss of "dignity" the right is designed to prevent is not
the defendant's making a fool of himself by presenting an amateurish or even
incoherent defense. Rather, the dignity at issue is the supreme human
dignity of being master of one's fate rather than a ward of the State--the
dignity of individual choice.

In fairness to Professor Berman, it is off-putting to read about the "dignity of individual choice" in a Scalia dissent (joined by Thomas, no less). But nothing here is inconsistent with Scalia's usual red meat approach to constitutional law. In his view, the Constitution grants an unqualified right to the assistance of counsel. This right necessarily includes the right not to have the assitance of counsel, if one so chooses. In Scalia's view, that's all there is to it. The majority's exception is just nambly-pambly good intentions and paternalism. As Scalia points out, an attorney (necessarily) has all sorts of authority to make decisions for his client during a trial - what questions to ask, which witnesses to call, what defense to present. While having an attorney is almost always in the defendant's interest, he still retains the choice to not give up these rights to an attorney, and to represent himself.

Scalia is rather restrained in this dissent, compared to say Boumediene, in which he blamed the future deaths of U.S. soldiers on the majority. Indeed, while we agree with his dissent, we could list a few more complaints with Breyer's opinion, some based on our own experiences in representing difficult or mentally ill clients.

We'll discuss this further in tomorrow's post, but for now, one comment. Go back to the last quote from Breyer, above. While he expresses concern about how self-representation will affect the client, isn't he at least as concerned about the problems it would create for the trial court? (Note, particularly, his use of the word "spectacle") In an earlier decision (quoted in Edwards) Breyer had expressed concern about continuing to allow the right of self-representation. Some people, it seems, had been complaining about the results of the rule in Faretta. Guess what - those people weren't criminal defendants - they were trial judges!

NEXT: We discuss our own disagreements with Edwards.

Boumediene: Wrap-up

Rothgery v. Gillespie County. Texas is the first Supreme Court case discussing the attachment of the right to counsel in some time, but we don't think it's worth an entire post. Indeed, we don't think it was worth a written opinion. Notice that none of the nine judges seems to think that the argument advanced by Gillespie County, which aimed to distinguish Brewer and Jackson, had any merit to it. On today's Supreme Court, however, not one but four separate opinions are needed to resolve this issue.

Judge Thomas, the author of the only dissent, is the worst offender. He seems to agree that Brewer and Jackson contain language that would decide the issue, but wants to overrule these (uncontroversial) precedents because they conflict with (what he infers to be) the intent of the framers of the constitution. Roberts needlessly kills trees by writing a concurrence saying that Thomas's dissent is "compelling," but that there's no reason to overrule Brewer and Jackson (Question: Why, then, is Thomas's dissent "compelling"?) Alito writes a long concurrence addressing an issue that he admits was not raised in the petition.

Someone should bring up Rothgery the next time the Supremes complain about how busy they are.

BACK TO BOUMEDIENE: See our archives for the previous six posts in this series!

As we stated yesterday, Roberts' first point in his dissent is well-taken. If we're assuming that the Detainee Treatment Act allows detainees most of the important rights allowed in a habeas petition, why strike it down? To be fair, Kennedy's point may be that we cannot make this assumption. If this is true, he could have been a lot more clear.

Roberts makes two other arguments, which you can read and we'll paraphrase. First, he thinks that the case was heard too early. He writes that the detainees should have first challenged their detentions through the procedures in the DTA - only if they lost would it be necessary to seek the writ of habeas corpus. Second, he believes that the court's decision conflicts with Hamdi - an earlier case that seemed to say that the (somewhat cursory) procedures like the Combat Status Review Tribunals used by the government were OK.

They are different responses to these arguments, but the best response is implied in Kennedy's opinion, implied more strongly in Souter's concurrence, and stated explicitly as thus: The majority is tired of the government screwing around. As Souter states, many detainees have been held for over six years. None of them has had an opportunity to argue to a neutral judge that they are being unlawfully detained. The majority seems to have concluded that this would never happen absent action from the court.

Roberts, in our view (and likely in the view of the majority) has been inhaling chalk if he really thinks "the system the Court has launched (and directs lower courts to elaborate) promises to take longer" than appeals under the DTA. Inevitably, claims (perhaps meritorious ones) would be denied under the DTA, which to ouor eyes only allows a very cursory review of the CRSTs. Inevitably, then, the court would have to confront the issue it decided in Boumediene. Roberts' approach would just run another few years off the clock.

As for Roberts' last point: Techincally and formally, Hamdi and Boumediene are apples and oranges - Hamdi only talks about the procedures required under due process, while Boumediene discusses the procedure for habeas review of those procedures. (Scalia and Thomas, both dissenting, are normally the world's leading proponents of technical and formal distinctions).
That said, we wouldn't be surprised if Kennedy had grown a bit uncomfortable with Hamdi. We couldn't do a critique of Hamdi justice in such a small space - let's just say that Scalia had a point in his Hamdi dissent when he critized the majority for appropriating a due process standard used for denying disability benefits!

CONCLUDING THOUGHTS: It looks like the detainees will finally get their day in court to contest the merits of their detentions. Whether and how many people will actually be released is anyone's guess (our guess: not very many. But check out this order , courtesy of Scotusblog). Boumediene only grants detainees the ability to challenge their detention through the writ of habeas corpus, and in doing so reaffirms one of our most important constitutional rights.

NEXT: We hope to discuss Indiana v. Edwards before the "big" opinions come out. We may even share some of our own experiences as a public defender!

POSTSCRIPT: The late George Carlin, like the Jehovah's witnesses and the Hare Krishnas, played a special role in the development of the First Amendment. You know what to do: click here.

Boumediene: Roberts' Dissent

We're reading The Brethren, Bob Woodward and Scott Armstrong's inside account of the Burger Court in the late 60's and early 70's. It's a bit gossipy for our tastes, but on the whole, we've found it very enlightening. Particularly interesting: The book reveals how difficult it can be to get nine (or even five) judges to sign a single opinion. Many compromises must be made. This bears keeping in mind as we discuss Kennedy's somewhat garbled opinion in Boumediene.


WHERE WE LEFT OFF: Kennedy rules that the Detainee Treatment Act is unconstitutional because it doesn't give the detainees enough rights to challenge their detention. But he assumes that the DTA guarantees many important rights - guarantees that don't seem to be in the statute! Then he says that DTA is deficient because it doesn't include the right to consider newly discovered evidence - a right that most habeas corpus petitioners don't generally have! Finally, he seems to sayt hat (despite his earlier assumption) that the DTA cannot be read to guarantee anything close to habeas corpus because that's not what Congress wanted.

Chief Justice Roberts has trouble making sense of this. After noting the rights guaranteed by the DTA, he writes:

Despite these guarantees, the Court finds the DTA system an inadequate habeas substitute, for one central reason: Detainees are unable to introduce at the appeal stage exculpatory evidence discovered after the conclusion of their CSRT proceedings.

. . .

If this is the most the Court can muster, the ice beneath its feet is thin indeed.

He also summarizes Kennedy's final argument.

In other words, any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.

Thus, the statement the beginning of the dissent:

How the detainees' claims will be decided now that the DTA is gone is anybody's
guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners' detention with the undoubted
need to protect the American people from the terrorist threat--precisely the
challenge Congress undertook in drafting the DTA. All that today's opinion has
done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.

For reasons we'll discuss shortly, we don't agree with Roberts - but certainly these points are fair responses to the argument advanced by Kennedy. Before we go farther, however, let's go back to Scalia's dissent. Let's discuss the portion of his dissent that was mostly widely quoted.

The game of bait-and-switch that today's opinion plays upon the Nation's
Commander in Chief will make the war harder on us. It will almost
certainly cause more Americans to be killed.

"Almost certainly?" Scalia's argument must be that the decision will allow detainees significantly more rights, which will allow significantly more of them to be released, which will result in more Americans being killed.

But look at Roberts. He sings the praises of the DTA- "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." His whole point is that the system is so thorough that replacing it with habeas corpus will not accomplish anything. "[T]he habeas process the court mandates will most likely end up looking at lot like the DTA system it replaces."

If this is true, how could anyone be "almost certain" that more Americans would be killed? Remember that Scalia and Roberts signed each other's dissent.

Roberts and Scalia, as we're constantly told, are Great Legal Geniuses. This could not possibly be an oversight on their part, in such an important opinion. Instead, it seems "almost certain" that Scalia (and Roberts) don't really believe everything they put their names to.

OUR OWN VIEW: As we said, the quoted portions of Robert's dissent are fair responses to Kennedy's opinion. As with the issue we previously discussed, we feel that Kennedy is Making Things Harder Than They Need to Be. To our eyes, the text of the Detainee Treatment Act does not seem to guarantee any significant right to challenge unlawful detentions. Why not just say this? In defense of Kennedy, that might be what he's getting at near the end of the opinion, in the section that Roberts describes as the "Catch-22" Perhaps there were diverging opinions in the majority, and Kennedy just did his best to reconcile them.

NEXT: We aim to wrap up our discussion of Boumediene by discussing two other points from Robert's dissent. (preview: they don't hold as much water as the one discussed today). We still plan to cover Indiana v. Edwards. For now, read this analysis on Scotusblog.

Boumediene: Why the Detainee Treatment Act Wasn't Enough

The Supreme Court's decision in Indiana v. Edwards is worth discussing; we hope to cover it next week, before the really big opinions come out. Sneak preview: Scalia writes a reasonable and persuasive dissent!

BOUMEDIENE PART V: Scroll downwards for our earlier posts in this series. A quick recap:

(1) The Court rules that detainees have a constitutional right to the Write Habeas Corpus
(2) The writ extends to Guantanamo Bay;
(3) Scalia is full of it.

There's still one more question to address - Did Congress provide an adequate substitute for habeas corpus?

Quick background: In 2005, after heavy lobbying by the Bush administration, Congress passed the Detainee Treatment Act. The Act was a response to the Rasul decision, which held that the detainees had a statutory right to habeas corpus. Many lawsuits ensued.

The DTA took away the courts' ability to hear habeas corpus petitions. Instead, the detainees were left with Combat Status Review Tribunals (CRSTs). The CRST's are military panels charged with reviewing whether a detainee was an "enemy combatant."

The DTA did give the detainees a limited right to appeal to one federal court in Washington DC. The courts were empowered to hear only the following claims:

whether the status determination of the [CSRT] ... was consistent with the
standards and procedures specified by the Secretary of Defense ... and (ii) to
the extent the Constitution and laws of the United States are applicable,
whether the use of such standards and procedures to make the determination is
consistent with the Constitution and laws of the United States."

Is this close enough to habeas corpus? In the last part of his opinion, Kennedy concludes that it is not. As such, the majority strikes down this portion of the DTA. He rules that the detainees have the right, under the constitution, to seek the writ of habeas corpus (at least after their CRST), and have the federal courts review the legality of their detention.

(It bears mentioning that this opinion does not by itself release any of the detainees. It just allows them to file lawsuits in lower federal courts, which will then have to decide whether the detainees are entitled to be released).

Reading the section of the DTA above, one would think that Kennedy could reach this last conclusion without too much difficulty. Although he declines to define exactly what the right to habeas corpus includes, Kennedy lists several elements that seem to make sense. First, a court must be able to determine whether there was enough evidence at the CRST to find that the detainee was an enemy combatant. Second, the court must be able to determine whether the president has the legal authority, under the law and the constitution, to hold the detainee as enemy combatant for the duration of the "war on terror." Third, a court must be able to release the detainee if he is being illegally held for any of the first two reasons.

What's striking about the DTA, to our eyes, is that it does not appear to guarantee any of these rights. In other words, that all the government needs to do to win an appeal is to show that (1) it followed the rulebook for the CRST's, and that (2) those procedures in that rulebook did not violate the Constitution. Indeed, the right to appeal was even narrower than that, because the Supreme Court had (apparently) already addressed issue #2 in a 2004 case called Hamdi v. Rumsfield.

In short, the DTA doesn't seem to allow detainees much of an appeal right at all. And - that was exactly what Congress wanted. As Kennedy states:

To the extent any doubt remains about Congress' intent, the legislative history
confirms what the plain text strongly suggests: In passing the DTA Congress did
not intend to create a process that differs from traditional habeas corpus
process in name only. It intended to create a more limited procedure. See, e.g.,
151 Cong. Rec. S14263 (Dec. 21, 2005) (statement of Sen. Graham) (noting that
the DTA "extinguish[es] these habeas and other actions in order to effect a
transfer of jurisdiction over these cases to the DC Circuit Court" and agreeing
that the bill "create[s] in their place a very limited judicial review of
certain military administrative decisions"); id., at S14268 (statement of Sen.
Kyl) ("It is important to note that the limited judicial review authorized by
paragraphs 2 and 3 of subsection (e) [of DTA §1005] are not habeas-corpus
review. It is a limited judicial review of its own nature").

This should be an easy law to strike down. Unfortunately, Kennedy's opinion displays his well known tendency to Make Things Harder Than They Need To Be. In his opinion, Kennedy assumes that the DTA does guarantee all of these important rights listed above. To our eyes, these rights seem very difficult to tease out of this statute. (Incidentally, this idea of a broadly interpreted statute came from the government's lawyers, who probably decided that a broad DTA was better than no DTA).

In Kennedy's opinion, however, this is still not enough. Why? Because the DTA does not allow the courts to consider "newly discovered evidence" - that is, evidence discovered after the CSRT.

This is a bit unusual. After all, as Kennedy acknowledges, convicted criminal defendants (the people who account for most of the habeas petitions in this country) generally do not have the right to bring up newly discovered evidence in their habeas petitions.

So Kennedy offers another justification;

We do not imply DTA review would be a constitutionally sufficient replacement
for habeas corpus but for these limitations on the detainee's ability to present
exculpatory evidence. For even if it were possible, as a textual matter, to read into the statute each of the necessary procedures we have identified, we could not overlook the cumulative effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President's legal authority to detain them, contest the CSRT's findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress' reasons for enacting it, cannot bear this interpretation.

We're a bit perplexed. Is Kennedy assuming that the necessary procedures are in the statute, or not?

NEXT: Roberts has a field day

Boumediene Part IV

Can it be argued, in good faith, that Eisentrager (and other precedent) mean that habeas corpus does not extened to detainees at Guantanamo Bay? Our view is that it should - in fact, we don't feel that this is a particularly close question. But certain language in Eisentrager, as well as certain practical considerations, may lead others to disagree. Kennedy's careful opinion , for exampletreats the issue as a fairly close question.

To be fair, Scalia does discuss in some detail his interpretation of Eisentrager (he thinks the controlling the majority is looking at the wrong controlling language). But in Scalia's opinion, there can be no room for reasonable disagreement about the interpretation of this case. "Eisentrager thus held--held beyond any doubt--that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.

How silly is this statement? Even the government - even John "Rubber-Stamp" Yoo, thought this issue came down to the "weight of authority, " not some alleged "smoking gun" language in any particular case. In fact, even Chief Justice Roberts, who joined Scalia's dissent, felt the need to say this about the habeas corpus issue in his own dissent:

I regard the issue as a difficult one, primarily because of the unique and unusual jurisdictional status of Guantanamo Bay

So why is Scalia pretending otherwise? Obviously, because it sets up the second part of his argument. By pretending that the non-availability of habeas corpus at Gitmo is the most obvious fact in the history of Supreme Court precedent, he can say this:

The President relied on our settled precedent in Johnson v. Eisentrager, 339
U. S. 763 (1950), when he established the prison at Guantanamo Bay for
enemy aliens. . . . Had the law been otherwise, the military surely would
not have transported prisoners there, but would have kept them in Afghanistan,
transferred them to another of our foreign military bases, or turned them over
to allies for detention.

Scalia just loves to talk about how dumb judges are, compared the great thinkers in the executive and legislative branch (here, for example, he opines that the court has no "competence" to "second-guess" the political branches - "the Court blunders in nonetheless") In the cited passage, however, Scalia demonstrates his own vast knowledge of foreign policy decisionmaking, concluding that the USA "surely would not" have transported prisoners to Gitmo if there was any doubt about the availability of habeas. Of course, no citation is provided.

Let's be frank - Scalia has no idea what the USA "surely" would have done with the detainees under a differing legal landscape (neither do we). The mere fact that the USA sought a legal opinion about the availability of habeas at Gitmo does not mean that they based their decision on their analysis. (Indeed, we've always suspected that the purpose of memos from people like John Yoo was to provide justification for decisions the President had already made.)

We're no less qualified to offer an opinion about what the USA might have done with the detainees had Eisentrager not been decided than Scalia is, so here goes: In our view, it is unlikely that the USA would have kept them in Afganistan, sent them to another base, or handed them over to our allies. The whole point of the Gitmo detention was to give the executive branch unbridled control over the detainees. The other options listed above would present serious security and political obstacles to that control. In our view, the Bush adminstration - as with so many other decisions made during the war on terror - was willing to act first and deal with the legal consequences later.

Indeed, we feel that the executive branch - and not the court - is the party acting in bad faith in this case. Gitmo is obviously within the total control of the United States. Yet throughout the detainee lawsuits, the government has nonetheless argued that this is irrelevant because Cuba is the sovereign nation in control of that area. We feel that Kennedy and the majority give this somewhat specious argument more respect than it deserves.

The Bush administration wanted to have its cake and eat it too - it wanted the prisoners to be completely at the mercy of the executive branch, without interference from the courts, from other countries, and (at least until the court forced them to concede otherwise in Hamdi) Congress.

Even George Will sees a problem with that.

PLAYING TO THE CHEAP SEATS:

Some more of Scalia's vast expertise in foreign policy on display:

The game of bait-and-switch that today's opinion plays upon the Nation's
Commander in Chief will make the war harder on us. It will almost
certainly cause more Americans to be killed.

"Almost certainly?" As we'll discuss later this week, when we get to Robert's dissent, this claim is quite unlikely. But why pass up an opportunity to accuse Kennedy of killing Americans?

NEXT: Roberts' dissent.

Boumediene Part III

Here is the key passage of Judge Scalia's dissent:

The game of bait-and-switch that today's opinion plays upon the Nation's
Commander in Chief will make the war harder on us. It will almost
certainly cause more Americans to be killed. That consequence would be
tolerable if necessary to preserve a time-honored legal principle vital to our
constitutional Republic. But it is this Court's blatant abandonment of such a
principle that produces the decision today. The President relied on our
settled precedent in Johnson v. Eisentrager, 339
U. S. 763 (1950), when he established the prison at Guantanamo Bay for
enemy aliens. Citing that case, the President's Office of Legal Counsel advised
him "that the great weight of legal authority indicates that a federal district
court could not properly exercise habeas jurisdiction over an alien detained at
[Guantanamo Bay]." Memorandum from Patrick F. Philbin and John C. Yoo, Deputy
Assistant Attorneys General, Office of Legal Counsel, to William J. Haynes II,
General Counsel, Dept. of Defense (Dec. 28, 2001). Had the law been
otherwise, the military surely would not have transported prisoners
there, but would have kept them in Afghanistan, transferred them to
another of our foreign military bases, or turned them over to allies for
detention. Those other facilities might well have been worse for the detainees
themselves.

Scalia's dissent raises the same question much of his writing does - is he really this dumb, or is he just faking it? Here at Hawks and Handsaws, we've never been of the opinion that Scalia is the Great Genius as so many commentators (of all political persuations) insist. That said, we assume he's a pretty smart guy. In fact, we even agree with him from time to time. In this instance, though, we have to conclude that he's taking his readers for a ride.

Scalia wants us to believe that the Court has played a cruel trick on the poor unsuspecting government. First, it decided a case (58 years ago) in which in laid down a clear and uncontrovertable principle that established beyond any doubt that courts had no jurisdiction in Guantanamo Bay. The President, relying in good faith on this canon of law, moved the prisoners to Gitmo (he never would have if there were any doubt about this). But then the cruel trick! The Supreme Court reverses its 58 year-old case, declaring that it does have jurisdiction over the detainees claims. The real losers, of course, are ordinary Americans - who "almost certainly" will be killed in greater numbers because of the decision.

Let's put aside the oddness of Scalia making a stare decisis argument (for our laymen readers, stare decisis is a principle that cases previously decided should generally be followed. Scalia, in almost every other context, has no use for this principle. This is why he opines, at every possible opportunity, that Roe v. Wade should be overturned). Does this argument make sense?

First, what is Johnson v. Eisenstrager actually about? Eisenstrager was a lawsuit brought by a group of German POWs who were being held in Landsberg prison, in (temporarily) occupied Germany after WWII. No one disputed that the German prisoners were captured enemy soldiers. In addition to that, these prisoners had already been convicted by military tribunals of violating the laws of war.

One can think of many good reasons why a court in the United States should not get involved in a dispute involving admitted enemy combatants in a temporarily occupied terrortory (although three judges dissented in Eisentrager). At the same time, there are number of differences between the detainees in Eisentrager and those in Gitmo. We'll defer to Kennedy's opinion for the full analysis, noting only that (a) many of the Gitmo detainees deny that they are actually enemy combatants; (b) they have not been provided anything near the process that the German POWs received from the military tribunals; and (c) the prisoners were held in a foreign country that the USA was only temporarily occupying. Indeed, Eisentrager discusses these factors in some detail - there is, for example. an entire section discussing the legality and adaquecy of the military tribunals the prisoners received.

In short, it's hard to see how the facts or the result in Eisentrager dictates the outcome of the Gitmo case. Scalia doesn't seriously contest this point. Instead, he points to the language in the opinion that he likes:

"But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." Id., at 770-771.

. . .

Eisentrager thus held--held beyond any doubt--that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.

Like John Belushi in Animal House, Scalia's on a roll. One would think Scalia would be a bit more careful about the relevant language is making such a broad statement. After all, the cited portion of Eisentrager says nothing about "sovereignty" - it speaks of "territorial jurisdiction." (Scalia assumes they mean the same thing - but they may not).

And as we stated yesterday, our own view is that Gitmo is within the "soveriegnty" and/or the territorial jurisdiction of the USA in every meaningful sense.

But put that aside - since when the h*ll is dicta (language unnecesary to reach the result of a case) in a 58-year old case afforded the status of law brought down from Mt. Sinai by Moses? Everyone knows that the Supreme Court - and in particular, the four judges who signed Scalia's dissent - ignores dicta all of the time. (Just last year, for example, Chief Roberts danced around volumes of unfavorable dicta in his decision in Parents Involved in Community Schools v. Seattle School District ).

Scalia pretends not to understand what everyone knows. Everyone, by the way, includes the lawyers at the executive branch. Remember that memo cited by Scalia? At most, it could conclude that "the great weight of authority" supported the proposition that Eisentrager supposedly held "beyond any doubt." This memo, by the way, was co-authored by that noted legal scholar John Yoo, who never seemed to have trouble finding Constitutional authorization for whatever the president wanted to do.

NEXT: We discuss the "bad faith" involved in Boumediene. Hint: we're not talking about the majority opinion.

Boumediene Part II

So if there's a Constitutional right to habeas corpus, it's smooth sailing for the Gitmo detainees, is it not? Well, no . . . there are still two questions to be answered. As we stated last week, this is where the disagreement between the justices lies. This week, we plan to explore each of these questions.

The first question: Does the Constitutional right to Habeas Corpus extend to Guantanamo Bay? As far as legal questions go, this is a pretty narrow issue - but it takes up the largest part of Kennedy's majority opinion.

We'll spare you the details - it's an exhaustive discussion of several hundred years of cases discussing the reach of the writ. Kennedy's opinion concludes that there is no simple, formal test to determine how far the writ goes; instead, he lists a number of factors: the status of the petioners, the practical difficulties in granting the writ, etc. - and determines after evaluating these facts that the writ extends to the Gitmo detainees.

In our view, Kennedy makes this question a lot harder than it needs to be. Everyone seems to agree that the great writ extends at least to those areas where the United States is "sovereign." Kennedy, however, concedes in his opinion that the United States is not "technically" sovereign over Guantanamo Bay - which necessitates his much more complicated analysis. But why concede this? Technically speaking, the United States has been leasing Gitmo from Cuba for over 100 years. But Cuba has absolutely no say over what happens there - the treaty gives the United States "complete jurisidiction and control" over the bay. (Thanks to Wikipedia). Indeed, for the past forty years or so, Cuba has made it very clear that they don't want us there! (they don't cash the rent checks, although you'd think they'd come in handy). As far as we know, the USA has no plans to ever end their "lease" in Gitmo.

Incidentally, no one lives in Guantanamo Bay other than the military personnel at the American base.

In short, Cuba's techinical "sovereignty" over Guantanamo Bay doesn't amount to a hill of beans. The law of the USA reigns supreme at Gitmo just as thoroughly as it does in Puerto Rico or New Jersey. Why not just call a spade a spade and say that the USA - at least for purposes of the reach of habeas corpus - is "sovereign" over Gitmo?

We don't know the answer, but we'd hazard a guess. Kennedy and the other members of the majority generally prefer to avoid resolving cases by setting or continuing formal hard-and-fast rules. This is a major, and continuing, point of contention between them and Judge Scalia, who has never seen an inflexible rule that he didn't like. Judges who adopt flexible rules are sometimes accused (often by Scalia) of being "activists" who seek to impse their personal principles in favor the unbending and neutral Rule of Law.

(Here at Hawks and Handsaws, we've never quite subscribed to this line of thinking. Our experience is that judges can just as easily apply their prejudices in applying formal rules of law. Moreover, formal rules, even if applied justly, will inevitably lead to unjust results in at least some cases. Finally, flexible rules allow for cases to be decided as narrowly as possible, which is perhaps the best check against judicial activism.)

Railing against flexible standards, nevertheless, is one of Scalia's favorite old saws. As we will see later, however, this is not the main argument he makes in his dissent. Rather, Scalia is greatly, greatly, concerned with Kennedy's broken promise to the government - his departure from a "settled promise" a case that until last week had occupied a seat with Brown v. Board of Education and Marbury v. Madison as fundamental American law. The case? You guessed it - the 1950 decision of Johnson v. Eisentrager

NEXT: Scalia's Dissent.

Habeas Corpus and the Constitution

In our view, the most important part of the Boumediene decision is right at the beginning. Before we go into that, let's review the context.

The military captured a number of persons while fighting in Afganistan in 2001-2002. The Bush administration alleged that these persons are "enemy combatants," and asserts the right to hold them for the duration of the hostilities, however long that might be. The government movesd them to Guantameno Bay, a military base in Cuba. The first people were transported over 6 years ago.

The prisoners, many of whom claim that they were not in fact enemy combatants, filed lawsuits in the courts in the United States. They sought something called the Writ of Habeas Corpus.

Habeas Corpus is a very old concept in our law - it goes back to King John and the Magna Carta (read Kennedy's opinion in Boumediene if you'd like an exhaustive history lesson). The writ allows a court to release someone if they are being held illegally in jail.

The question is: Where does the right to Habeas Corpus come from? Does it come from the Constitution? Or does it come from Congress? Article I of the Constitution mentions the writ: in a portion called the Suspension Clasue says: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." So while Congress cannot suspend the right (unless there's a rebellion or invasion), nothing in the Constitution explicitly says that it must be provided in the first place.

This hasn't been an issue for most of our history, because Congress has generally passed laws guaranteeing the right of Habeas Corpus. It was these laws that the detainees relied upon in filing their first lawsuits. In its first decision dealing with their rights, the Supreme Court agreed with the detainees that these laws allowed them to use the writ of habeas corpus.

After the detainees won, however, the Bush administration went to Congress, and asked it to repeal the detainees right to habeas corpus. So Congress passed a law in 2005 called the Detainee Treatment Act. This law took away the right of habeas corpus for the detainees, and replaced it with a more limited right to appeal to one court in Washington DC.

The detainees, however, continued their lawsuits. This time, they argued that the law taking away habeas corpus violated the Constitution.

The Supreme Court agreed with them. In doing so, it first had to answer the question posed earlier. Judge Kennedy, who wrote the opinion, first detailed the history of abuses that led to the creation of habeas corpus in England, abuses which caused the framers of our constitution to include the Suspension Clause. He then wrote,

"In our own system, the Suspension Clause is designed to protect against these
cyclical abuses. The Clause protects the rights of the detained by a means
consistent with the essential design of the Constitution. It ensures that,
except during periods of formal suspension, the Judiciary will have a
time-tested device, the writ, to maintain the 'delicate balance of governance'
that is the surest safeguard of liberty."

In our view, this is a Big Deal. In other cases, the court has hinted that the Constitution guarantees the Writ (see INS v. St. Cyr, for example) but its never come and said it quite this way. The Constitution guarantees the right of Habeas Corpus, even if Congress doesn't want someone to have it (unless, again, they suspend it because of a rebellion or invasion. The government did not even argue that was the case here).

What's really remarkable is that no one on the court - not even the four judges who disagree with the result - seems to disagree with Judge Kennedy on this point. This is especially remarkable because one of those judges - Scalia - has written before that the Suspension Clause does not guarantee that habeas corpus exists under the Constitution. After all the clause only says that Congress cannot suspend the "privilege" of the writ - it doesn't say that they have to provide it in the first place, or that the constitution guarantees it if Congress does not.

On the other hand, why go to the trouble of carefully limiting Congress's power to suspend the writ in emergencies, unless it was assumed that the writ would otherwise be available? It's hard to answer that question. For that reason, we think Kennedy is correct, and we're happy that the Supreme Court has recognized that the Constitution guarantees this important right.

NEXT:

So why do the other four judges disagree with the decision? They cite two reasons, discussed in two different dissenting opinions (the four judges - Chief Justice Roberts, plus Scalia, Thomas, and Alito, all signed both of them). Generally, we think one opinion makes some important points . . . and the other is a lot of hot air. Stay tuned for our discussion.

June 13

Welcome!

We've been meaning to start this blog for a while - the release of Boumediene v. Bush finally spurred us to action. We'll start with some posts about this decision next week. Our view after our first read? It's a good thing.