Comments on: Commentary: Can constitutional issues be finessed?

By: Andrew Oh-Willeke

Andrew Oh-Willeke — Wed, 05 Dec 2007 23:41:00 +0000

SCOTUS may not be required to issue a ruling, but after affording this case extra special treatment in several respects (extra argument time and a change of position on granting review at all), delay in this kind of high profile case seems unlikely.

The only case of comparable moment where the Court has had a major delay despite the intense spotlight on the case is Brown v. Board, and then, it did so because there was manuevering about getting a majority and consensus on an opinion. The argument today indicates that this case is far more digested by the justices already than Brown (e.g. with the very modest amount of discussion on jurisdiction), and the commitments of justices to positions in this case seems far less fluid than in Brown.

Also, Kennedy has made a point of talking about a need for haste in this case, and the conservatives, if they discover that they don’t have a majority on the jurisdiction issue have no incentive to delay that matter until the Bush-Cheney administration is no longer in office. Court liberals meanwhile, are probably eager to issue an opinion before Kennedy changes his mind entirely.

By: Howard Gilbert

Howard Gilbert — Wed, 05 Dec 2007 21:11:46 +0000

One should not assume that just because the Supreme Court heard the case today that they intend to issue a decision at this stage. Originally the Court wanted to wait until the DC Circuit finished its review of the CSRT process. When the DC Circuit refused to delay its mandate to dismiss the Habeas petitions in the lower courts, the Supreme Court granted cert and issued its own stay. That may be all that they have the consensus to do at this point. Nothing prevents them from holding the decision over to the next term if that is what is necessary for the DC Circuit to finish its review. This isn’t the schedule they originally wanted, and by simply deciding not to decide they can hold everything static until they feel the time is right.

By: Jay Sexton

Jay Sexton — Wed, 05 Dec 2007 18:51:04 +0000

How significant is this case if the underlying premise that detainees have some newly discovered access to constitutional liberties is confined to the unique territorial circumstances presented by the Platt Amendment? I mean, this all becomes moot pretty quickly if the grant of constitutional liberties is contingent upon being located in Gitmo, which the Court in Rausal suggested was tantamount to U.S. territory: Just build a prison ship that is stationed overseas and transfer the unlawful detainees to that prison. Unless the court is poised to assert a sweeping new mandate that all terrorists (unlawful enemy combatants) have constitutional rights no matter where they are being held by our military, then any decision in today’s case seems limited to a prison that the Bush administration has already indicated a desire to close.

By: Jacques MacKenzie

Jacques MacKenzie — Wed, 05 Dec 2007 18:43:49 +0000

Doesn’t the Supreme Court have to first reverse the D.C. Circuit, say that the lower court was wrong in saying detainees have no constitutional rights, and then — only then — suggest ways to right that error?

No, it may affirm on an alternative ground.