What Motivated the Cert Grant In Guantanamo Case? Linda Greenhouse Thinks She Knows

I usually like Linda Greenhouse's work, and I've been trying to figure out why this news analysis item on the Supreme Court's decision to hear the jurisdictional aspect of the Guantanamo detainees case is so annoying.

For starters, I don't find the account of the Court and the Executive going toe to toe while hepped up in “alpha mode” at all convincing. (I also don't find it attractive, but that's a different issue.) She writes, “it now appears that the administration laid down a challenge the justices were unwilling to ignore. This was a moment long in coming: the imperial presidency meets the imperial judiciary.” I think this is way over-dramatic for a ruling to grant cert. on jurisdiction.

Greenhouse argues that the administration took a needlessly hard line in arguing the court should deny cert. and this somehow poked a stick in the court's metaphorical eye. But what else was the Solicitor General supposed to do?

The government won unanimously below on the jurisdictional grounds, there is no circuit split (quite the contrary), so why on earth should they invite the Supreme Court to rule, which can only hurt the Administration's position? In any case, when a matter has international law overtones — and the question of where our domestic law runs always does — it's not surprising that the nation's highest court might think it appropriate to get involved.

Is it true that, “The administration's argument that the Supreme Court should not even hear the cases was thus a direct challenge to the court's sense of itself, a battle joined on the court's own most sacred ground”? No. Not at all. After all, the basis for the administration's argument, one that prevailed below, is grounded directly in a plausibly apposite decision of that same Supreme Court.

And the claim that the government should have defended the cert petition “on the merits” is just plain wrong: the court below did not rule on the merits, so the merits are not before the Supreme Court.

And, for a final annoyance, after having psychologized the court on the basis of a one-paragraph grant of cert., Greenhouse concludes with this,

The battle over who gets the last word in this round may have little bearing on the fate of the Guantánamo detainees. Even if the court finds jurisdiction, it is highly unlikely that any federal judge would order a detainee's release over military objections. But that does not diminish the importance of what happened on Monday, when the Supreme Court could have turned away but decided, instead, to decide.

In other words (shorter Linda Greenhouse?),

  • I can read the Justice's hearts and minds and measure their testosterone, but I can't tell you what they are going to decide.

Maybe I'm just a perennial optimist, but I think the grant of cert. is a marginally good sign. Grants of cert where there's no circuit split can be just because of the importance of an issue, but sometimes they're because members of the court think the lower court(s) erred.

And, as noted in an earlier and better Linda Greenhouse item, something can be learned from

a comparison of how the administration phrased the question presented by the two cases with how the justices phrased it in their order granting review. Solicitor General Olson said the question was whether the federal courts had jurisdiction to decide the legality of detaining “aliens captured abroad in connection with ongoing hostilities and held outside the sovereign territory of the United States at the Guantánamo Bay Naval Base, Cuba.”

The Supreme Court, by contrast, said it intended to decide the jurisdiction of the courts to hear challenges to “the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantánamo Bay Naval Base, Cuba.” The court's question incorporated no assumption about whether the base was or was not “outside the sovereign territory of the United States.”

Which at least leaves open the possibility of a fairly narrow ruling applying only to territory where the US has a perpetual lease and a permanent presenence. That would do, for now.

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