Other Voices On Today’s Decisions

Now that I've sorta figured out what I think, other takes on today's decisions:

Scrivener's Error,

Like Gaul—or, more the the point, gall—the detainee mess is divided into three parts. One division is the obvious one: Hamdi (PDF, 822kb), Padilla (PDF, 517kb), and Rasul (PDF, 520kb). That's certainly the way the three decisions will be divided in the media. However, there is a much more logical and important division into three parts: civil procedure, government power, and military necessity. Just to be different, that's how I'm dividing things. I also think it gives some interesting perspectives on exactly what was going on.

Lots at SCOTUS Blog

Greg Goelzhauser, Did Congress authorize indefinite detention?

Marstonalia on Hamdi

What happens to Hamdi himself — and what sort of rules exist for future cases of this sort — will now be heavily dependent on what kind of procedure is implemented below. Four members of the Court explicitly left the door open to military tribunals (see p. 31), and Thomas could probably be relied upon to provide a fifth vote. But the government is on notice that four members of the Court — and possibly more, depending on the views of those who joined O'Connor's opinion — are not going to be deferential.

Legal Theory Blog has a round-up of the votes and other comments.

Update: Read Balkin

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3 Responses to Other Voices On Today’s Decisions

  1. fibo says:

    Just in passing, the Balkin commentary mentions a Washington Post interview with Richard Samp that claims all three rulings as government victories. I’m wondering what your view on that particular line of reasoning is.

  2. Phill says:

    How could the result be other that a humiliating defeat for the Bush Administration?

    The administration has repeatedly claimed that there is absolutely no right to any form of court releif whatsoever. It is an absolutist position that could not possibly have been accepted by anything other than a show court.

    It is not a surprise that Thomas continues to prove that he is unfit to serve on any court let alone the SCOTUS.

    The Padilla case makes a lot more sense in the context of the Hamdi case. At this point the SCOTUS has given a rulling on the principle at stake in Padilla in the Hamdi case. The administration is not above the law, they cannot suspend habeas without an act of Congress (which they have neglected to ask for).

    Rumsfeld and Ashcroft have probably not given up but it is highly unlikely that Padilla will make it back to SCOTUS before he gets to see a lawyer.

  3. Lori says:

    Richard Samp is with the Washington Legal Foundation. See
    Long story short, he says what he’s paid to say.

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