Comments on: Who Could Be Writing 2007′s Remaining Opinions?

By: Roger Ford

Roger Ford — Tue, 08 Apr 2008 23:24:45 +0000

I tend to think that Santos is being written by Alito and not Breyer. Thus far, Breyer has written 2 opinions and Alito only 1. Also, I tend to think that the opinion will be a victory for the government, which in turn suggests that a more “conservative” judge will write it.

Or it could be assigned to Breyer in an effort to keep him part of a pro-government majority. Has Roberts made those sorts of seemingly strategic assignments?

By: The always thoughtful and germane Jacques McKenzie

The always thoughtful and germane Jacques McKenzie — Tue, 08 Apr 2008 05:13:48 +0000

While I agree with Professor Lederman that at least five Justices will hold that the DC Circuit review in the DTA was a constitutionally adequate substitute for habeas, if they reach the question, and I agree that the jurisdictional question could be argued either way (I am uncertain exactly where Kennedy comes down and I doubt that the period of time of detention guts the jurisdictional argument, as Professor Lederman appears to believe http://balkin.blogspot.com/2007/12/quick-take-on-boumediene-oral-argument.html), I think the delay is more likely due to no clear five-Justice majority having taken shape with regard to what it means “that the detainees have constitutional habeas rights”. Nor do I think that Bismullah really puts a crimp in that outcome by swaying Justice Kennedy’s view on the fairness and expeditiousness of the unlawful detention claims.

Though I was not involved in the briefing in Boumediene, as was Professor Lederman, in my opinion the difficulty might be in determining whether the constitutional rights to habeas that detainees have contains any more substance than the right to file a lawsuit, and drafting wording to that effect that draws in a sixth vote rather than eliciting a harsh dissent that harms the legitimacy of the Court.

By: Marty Lederman

Marty Lederman — Mon, 07 Apr 2008 19:35:40 +0000

Just a suspicion: In Boumediene, AMK was assigned to write for one five-Justice majority that the detainees have constitutional habeas rights, but for a very different five-Justice majority that the DC Circuit review in the DTA was a constitutionally adequate substitute for habeas.

Bismullah, however, could well have put a crimp in that outcome: I can’t imagine that Kennedy is any longer so sanguine (if he ever was) about the prospects that the D.C. Circuit review will result in fair and expeditious resolution of the unalwful detention claims.

By: Andy Grewal

Andy Grewal — Mon, 07 Apr 2008 19:26:19 +0000

“Why is the rather routine case of Santos taking so long?”

At oral argument there was a question of whether the case required additional briefing or additional arguments…I think the issue turned out to be thornier than how the parties’ presented it to be.

By: Kent Scheidegger

Kent Scheidegger — Mon, 07 Apr 2008 17:49:37 +0000

“Treatise” was supposed to be in strikeout type in the preceding comment. Guess that attribute doesn’t work here.

By: Kent Scheidegger

Kent Scheidegger — Mon, 07 Apr 2008 17:48:24 +0000

Why is the rather routine case of Santos taking so long? One possible explanation is that it was assigned Justice Breyer, and he put the opinion on the back burner while he worked on his treatise dissent in Medellin.

By: Gregory Dolin

Gregory Dolin — Mon, 07 Apr 2008 16:48:40 +0000

Oh, and I meant to ask whether Tom believes the fact that AMK is writing Al-Odah tends to suggest that the conservatives prevailed. After all, in the previous two enemy combatant cases where liberals prevailed (Hamdan and Rasul) it was JPS who wrote for the Court. I would think that were he in the majority, he would write again.

By: Gregory Dolin

Gregory Dolin — Mon, 07 Apr 2008 16:46:49 +0000

I am certainly nowhere the expert on SCOTUS that Tom is. However, I tend to think that Santos is being written by Alito and not Breyer. Thus far, Breyer has written 2 opinions and Alito only 1. Also, I tend to think that the opinion will be a victory for the government, which in turn suggests that a more “conservative” judge will write it.

By: The always thoughtful and germane Jacques McKenzie

The always thoughtful and germane Jacques McKenzie — Mon, 07 Apr 2008 16:44:52 +0000

1. Two of the invisible variables in Boumediene, I would speculate, are (1) the briefing and oral argument in Munaf; and (2) the supplemntary briefing in the case related to Parhat and Bismullah. It is my opinion that Munaf is a perfect test case for a limiting principle in Boumediene and the two cases are having feedback effects on each other. I imagine that goes some lengths to explain the reaction of the bench to Mr. Marguiles' oral presentation in Munaf. 2. As for Davis, it seemed to me that the Roberts/Alito conservatives were far more respectful of the dormant Commerce Clause in the garbage-hauler case last term (?) than the Scalia/Thomas conservatives. Using the same Justices, I'd slot Souter in for Williams and put Alito in for Davis.