Court refuses to hear Padilla appeal
on Apr 3, 2006 at 10:02 am
The Supreme Court on Monday refused to hear the appeal of Jose Padilla, a U.S. citizen held in a military jail for more than three years as an “enemy combatant.” The Court, however, declined to dismiss the case as moot, as the Bush Administration had urged. Only three Justices voted to hear the case, according to the order and accompanying opinions. The case was Padilla v. Hanft (05-533).
The decision was a victory for the Bush Administration in one significant sense: by not finding the case to be moot, the Court leaves intact a sweeping Fourth Circuit Court decision upholding the president’s wartime power to seize an American inside the U.S. and detain him or her as a terrorist enemy, without charges and — for an extended period — without a lawyer. The Court, of course, took no position on whether that was the right result, since it denied review. The Second Circuit Court, at an earlier stage of Padilla’s own case, had ruled just the opposite of the Fourth Circuit, denying the president’s power to seize him in the U.S. and hold him. That ruling, though, no longer stands as a precedent, since the Supreme Court earlier shifted Padilla’s case from the Second to the Fourth Circuit.
The Administration was so eager to have the case out of the Supreme Court that it was willing to let the Fourth Circuit decision be erased, which would have been the result of a dismissal of the appeal on mootness grounds.
The victory for the government was not an unqualified one, however. The Court implied that Padilla has a legitimate concern that the government — which repeatedly changed its handling of his status — may again return him to military custody; it said that his case raised major issues — including the role of the courts in dealing with presidential power, and it told all courts to stand ready to react quickly if the government again shifted Padilla’s status or custody, in order to protect the writ of habeas corpus.. It even indicated that he would have a right to pursue a new appeal solely in the Supreme Court if his status were to change again. None of those comments would seem to be welcome to the Administration.
The most important of the two opinions issued with the order denying review was one that spoke for three Justices who did not vote to the case, but took the unusual step of issuing an opinion to justify the denial of review. They said that “there are strong prudential reasons disfavoring” Court review. Padilla is due to go on trial on criminal charges in civilian court, and “any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings.”
In an opinion written by Justice Anthony M. Kennedy, and joined by Chief Justice John G. Roberts, Jr., and Justice John Paul Stevens, those three conceded that Padilla “has a continuing concern that his status might be altered again.” That, however, “can be addressed if the necessity arises.”
Kennedy wrote that “Padilla’s claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts.” That, he said, “also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical. This is especially true given that Padilla’s current [civilian] custody is part of the relief he sought, and that its lawfulness is uncontested.”
The Kennedy opinion, in covering so many bases — and, indeed, the effort the entire Court expended on this case — reflected the difficulty the Justices had had in deciding how to react to Padilla’s appeal. The Court examined the case eight times, including six times since Justice Samuel A. Alito, Jr., joined the Court in February, replacing retired Justice Sandra Day O’Connor. The Kennedy opinion was crafted in part, it appears, to attract the vote of Justice Stevens, who might have been thought likely to vote with the Court’s other moderate-to-liberal Justices to hear the case.
That the Kennedy opinion did not also attract the support of conservative Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas was a sign that it had gone too far to concede points in Padilla’s favor. They appeared to have silently voted against review.
Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter said they would have heard the case. Ginsburg wrote a separate opinion making the argument that the case was not moot, and should be reviewed. “Nothing prevents the Executive from returning to the road it earlier constructed and defended,” she wrote. Breyer and Souter simply noted their votes in favor of review. It takes four votes to grant review, however.
The Court issued no decisions in argued cases Monday, but did grant a pair of cases that seek to clarify what kind of conviction for a drug crime can lead to deportation for an immigrant. The question is whether, if the conviction came under state law and is a felony, but would only be a misdemeanor under federal narcotics law, does that qualify as an “aggravated felony” that can lead to deportation. The Court consolidated two cases on that issue: Lopez v. Gonzales (05-547) and Toledo-Flores v. U.S. (05-7664). The cases will be heard next Term, in a one-hour argument. The Solicitor General urged the Court to hear the issue.
