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.