Analysis: Hamdan and the prospects of tie votes
On Tuesday morning, at 11 o’clock or a few minutes after, Chief Justice John G. Roberts, Jr., is expected to rise from the bench, and depart from the courtroom. He has taken himself out of every preliminary action on the war-on-terrorism case of Hamdan v. Rumsfeld (05-184), so that is expected to continue Tuesday. But his departure raises at least the possibility that the other eight Justices might cast a 4-4 tie vote.
If such a vote comes on the merits, the result will be clear-cut: the Court will have upheld a decision by the D.C. Circuit Court finding no legal defect in ithe war crimes tribunals called “military commissions.” In that event, no precedent would be set, and the Justices will issue no opinion. Still, that would mean that foreign nationals facing war crimes charges would be tried under the system the Pentagon now has in place and ready at the detainee prison at Guantanamo Bay, Cuba. If any were then convicted in such a proceeding, they presumably could attempt to bring some kind of challenge in federal courts, although the scope of that kind of review s in doubt.
But before an eight-Justice Court could rule on the merits in the Hamdan case, it must first satisfy itself that it has jurisdiction to hear and decide that dispute. The Supreme Court’s jurisdiction to hear appeals is not open-ended, so a threshold issue in any case is whether a given lawsuit can, indeed, be decided there. Suppose, though, that the Justices split 4-4 on this issue in Hamdan. What then? The result is not as clear as it would be if the Court proceeded to the merits, and split 4-4.
The jurisdictional question is a more-than-routine issue in the Hamdan case. Congress late last year passed the Detainee Treatment Act, and the Bush Administration is arguing that the Act stripped all courts — including the Supreme Court — of jurisdiction to rule on any pending habeas challenge by any Guantanamo detainee. Salim Ahmed Hamdan’s lawyers, and attorneys for other detainees, dispute that interpretation, and argue that there pre-existing habeas cases should go forward.
This issue has arisen only since the Court agreed to hear the Hamdan case, so there is no lower court ruling on that point being reviewed by the Justices. Thus, were the Justices to divide 4-4, the question arises: does that establish jurisdiction, does it deny jurisdiction, or might it lead to some other outcome?
When the Court is asked to review a direct appeal, only four votes are necessary to find “probable jurisdiction.” (When a case reaches the Court via a petition for certiorari, four votes are needed to grant review; noting probable jurisdiction thus is rather like granting certiorari.) But when probable jurisdiction is noted on an appeal, that is not a final decision on the question of jurisdiction; the Court is entirely free to reexamine the jurisdictional question when it moves ahead with its review of an appeal In view of that, would the Court find jurisdiction in Hamdan with only four votes in favor of that, if that is disputed by four other Justices? There appears to be no precedent to provide an answer.
On the other hand, deciding a direct challenge to jurisdiction, based on a motion to dismiss under a specific jurisdictional statute, may be thought of as akin to deciding the merits of a case. Thus, it may take a clear majority among eight Justices — five — to resolve the issue in favor of jurisdiction. If that is true, a 4-4 vote could mean that the Court has not affirmatively found jurisdiction, and therefore it does not exist. Again, there seems to be no precedent.
The Court in recent years, when it has found it lacks jurisdiction of a pending case, has been in the habit of simply dismissing it without giving any specifics on why it thought jurisdiction did not exist. Would it do that if, in Hamdan, it split 4-4, and the Court then dismissed the case? A lack of an explanation would be a way out of a procedural dilemma, but a frustrating one.
Perhaps there are other options. One for example, would to be return the Hamdan case to the D.C. Circuit Court, with instructions to decide the jurisdictional question as it applies to the war crimes tribunals.. (In fact, the D.C. Circuit is already examining on its own the impact of the Detainee Treatment Act on two packets of pending Guantanamo detainee appeals not pending there, but not involving war crimes defendants.) Should the D.C. Circuit find it had no jurisdiction, the case could then return to the Supreme Court. Would Roberts be able to participate then, at least on the jurisdictional question, since he had not taken part in the Circuit Court ruling on that issue? It would seem a bit awkward.
Maybe another option in the event of a 4-4 tie would be simply to sit on the Hamdan case, without a decision on jurisdiction — indeed, without any decision at all — and wait until the D.C. Circuit has ruled on the detainee law’s impact on the different cases already there. Then, any appeal to the Supreme Court could be heard by all nine Justices, since Roberts would not have taken part in this process at the Circuit Court. A ruling on the jurisdictional issue could then control jurisdiction on Hamdan’s appeal.
(NOTE: At a legal conference Friday in Washington, the issue of a tie vote on jurisdiction in Hamdan was explored informally among a few seasoned Supreme Court advocates. The consensus: a 4-4 vote would not be sufficient to find jurisdiction, so the case would have to be dismissed. Readers of the blog are invited to join in this exploration.)
I think Scalia’s public comments show he is angling for a 5-3.
Comment by Commentator — March 27, 2006 @ 6:08 am
Isn’t the jurisdictional question in Hamdan now not really whether, because of the DTA, the Supreme Court has lost jurisdiction it might otherwise have had under, say, a special Supreme Court jurisdictional statute (such as section 1254), but whether all the federal courts have lost jurisdiction (which, if that were true, all the lower courts’ decision would have to be vacated, and the case dismissed by the district court — not cert. dismissed by the Supreme Court)? And the Supreme Court granted cert. in the case on the assumption, supported by the lower court decisions, that the lower federal courts properly exercised jurisdiction under mandamus and section 2241. Accordingly, the posture of the case would seem to be like that of mootness, where a party seeks to convince the courts that it has lost jurisdiction it previously had. In such circumstances, the burden is on the party arguing that jurisdiction has been lost.
Comment by Paul Wolfson — March 27, 2006 @ 9:29 am
Let me explain why I think Scalia’s public comments suggest he is angling for a 5-3.
Chiefly, Who is Scalia addressing? Obivously, at the lowest level of generality, he was replying to a question posed; thus, he was addressing the poser of the question. At a higher level of generality — one that takes politics into account, Scalia is mobilizing conservatives (e.g., Ed Whelan and his audience, Rush Limbaugh and his audience) by making provocative statements that the AP will most probably air. Because he makes what is a convincing argument if true — the Court has NEVER done XYZ, it automatically puts conservatives on notice that if the Court does XYZ, then the Court is deserving of criticism.
An obvious rejoinder is that Hamdan, as a case, was likely to garner extraordinary attention and criticism in any event; but this rejoinder is too general. The relevant theory is that Scalia cares about the kind of criticism to which the Court is exposed and cares about the the size of the audience that pays attention, because the effect of his statement (from which one could try to induce his motive) is to influence the internal dynamics of the Court. Why?
Let’s see. Roberts is recusing himself, and there is the possibility of a 4-4. Alito has been confirmed as a “conservative” jurist, but has yet to take a position on the War on Terror as a Supreme Court Justice. The stakes are high for Alito’s reputation within the conservative community — “Don’t become a Kennedy” — and this only serves to raise the stakes. In other words, a decisive win is needed, a persuadable vote could be on the fence, and a likely vote is out of play.
But Alito is not enough. Scalia needs to force the hand of those who seek to keep Court opinions consistent with public opinion and those who hope to steer the Court onto a path on the right side of history. One need only scroll down on http://www.orinkerr.com to see a post on Breyer commenting about O’Connor, and one only need look to Kennedy’s majority opinions in Gonzalez v. Oregon, Roper v. Simmons, and Lawrence v. Texas to note that there are Justices who care about international opinion, national opinion, and public opinion in general, because they believe it links the Court’s jurisprudence to public legitimacy. The line that Scalia is drawing here by making a provocative statement from Switzerland, much as John Kerry did from Davos, Switzerland in calling for Alito’s filibuster (I will not quote Hegel here, but I think the farce came first in this context), is that the elites of the United States and the elites of Europe have different mass bases before which they must appear legitimate. A Supreme Court opinion that is consistent with what elites in Switzerland think and inconsistent with what the mass of Americans think would appear an illegitimate opinion: Scalia is actively promoting the likelihood that those interested in legitimacy vote his way by stirring up opposition to an outcome inconsistent with what American public opinion will be after it is shaped by his comment that the Court NEVER DOES XYZ (and the implicit: a. the Court never does XYZ for categorically good reasons; and b. thus, the Court should not do XYZ in the case of Hamdan). In other words, this is not just a push on Alito, but also a push on Breyer and Kennedy to separate from Stevens, who thinks Rasul was a wonderful day in the park, rather than a departure from bedrock American principles. If you think about it, that’s 5 votes: assuming Scalia and Thomas will vote how Scalia suggests he might, Alito, Breyer, and Kennedy are the other “gettable” votes for Scalia in the absence of Roberts. (Note: This analysis is not a slight against Thomas; Thomas is more conservative than Scalia.)
So, what is Scalia doing? Trying to cobble together a 5-3 in the absence of Roberts!
Comment by Commentator — March 27, 2006 @ 10:47 am
If the Supreme Court wants to give full access to the courts to our enemies, Congress should read the Constitution and add that every case is to be tried at the Supreme Court all summer long, with the Justices sitting as triers of fact in every petition, without the ability to appoint a special master:
Article III states in relevant part, “…the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
Of course it wouldn’t happen, but in theory it would be permissible.
Comment by Brian G — March 27, 2006 @ 8:16 pm
Just a quick rejoinder to Brian G:
Not sure what you mean about the Supreme Court "giv[ing] full access to the courts to our enemies." The 5th Amendment of the Constitution – promulgated a couple hundred years before the current Court donned its robes – already prohibits the deprival of life, liberty, or property for any "person" – not any American or even any non-"enemy" – without due process of law. That very determination is what this is all about, after all: Who’s to say who’s an enemy or not without real due process, and do these Military Commissions provide that due process in light of the standards we have accepted?
Compare civilian criminals, whom one might rightly term "enemies" of society: regardless of how reprehensible the public may perceive them, we insist on trying them in court rather than in public opinion, thereby risking their acquittal, for the sake of preserving our constitutional values. Though the venue may be different (military as opposed to civilian), the normative values argument is the same. Ergo, what logical objection can there be to stripping the federal courts of their jurisdiction?
Anyway, correct me if I’m wrong (this law student has too many papers due right now to have read the briefs), but I don’t think anyone in this case is arguing that the Supreme Court should be deciding the substantive facts of Hamdan’s (or anyone else’s) detention. What’s at stake is the sufficiency of the military commissions to deciding on those facts. N’est-ce pas?
Comment by Jacob Howley — March 28, 2006 @ 12:05 pm
“If the Supreme Court wants to give full access to the courts to our enemies…”
If Brian G wants to discard the presumption of innocence, then Congress should read the Constitution and add that no case is to be tried at any court all year long.
Of course it wouldn’t happen, but in theory it would be permissible.
Comment by Adamos — March 29, 2006 @ 8:43 am
Perhaps Neal Katyal made the point well at the end of his oral argument:
“It was a great American patriot, Thomas Paine, who warned, ‘He who — that would make his own liberty secure must guard even his enemy from oppression, for if he violates that duty, he establishes a precedent that will reach unto himself.’”
Do I gather that Justice Stevens is ‘Acting Chief Justice’? Does this give him any tactical advantage? Could he get a 5-3 against Scalia, Thomas and Alito by, for example, asking Kennedy to write a majority finding that claimed jurisdiction but reserved the Court’s right to review the validity of the Military Commission until after Hamdan has had his hearing (which seems to be an idea that appeals to him)? Souter, Breyer, Ginsberg and Stevens himself could then join the judgement but write separate opinions as to reasons, if need be. That would keep things afloat – which may be the way they want to play it.
Comment by Guy Cotta — March 30, 2006 @ 2:31 pm
When the Chief Justice is incapacitated or recused, the next most senior Justice presides over oral arguments. I assume (but do not know) that the same applies to opinion assignment: when the Chief Justice is not in the majority, the next most senior Justice who is in the majority assigns the opinion. Thus my guess is that the opinion in this case will either be assigned by Stevens or Scalia, as the next two most senior justices, depending on which of those two gets a majority.
Comment by Simon — March 30, 2006 @ 10:50 pm