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Today in the Community: November 8, 2011

Today in the Community we are discussing the Court’s campaign finance jurisprudence and the effect that it has had on the electoral process.  As the 2012 election cycle continues to ramp up, more and more attention is being given to the impact of the Court’s historic decision in Citizens United.  We’d like to hear your thoughts on the matter, and specifically on whether recent developments in the practice of political fundraising (e.g., growth in “Super PACs”) reveal anything about the correctness of the Court’s reasoning in Citizens United.

We’ve identified a few notable comments from yesterday’s community discussion after the jump.

Shayana Kadidal 

There has not been a single release from Guantanamo in the last ten months—by far the longest such stretch of time in the nearly ten-year history of the prison—despite the fact that 89 of the 171 remaining prisoners have been cleared for release by the President’s inter-agency Task Force. The administration, which promised repeatedly to close the prison, blames Congress for erecting various transfer restrictions; more sophisticated observers blame the President’s indecisiveness and lack of political will. But it is clear that both political branches are determined to do nothing to change the status quo for our clients at Guantanamo.

Usually the constitutional role of the Courts is to break such impasses in the defense of individual rights. But the nomination of Elena Kagan to the Supreme Court effectively ended its role in that fight. She has recused herself from considering the cert petitions in the vast majority of detainee policy cases–every petition having to do with more than procedural or evidentiary issues–and will likely continue to do so for the indefinite future. It takes only 4 votes to grant cert, of course, but without a possible fifth vote on the merits from Kagan, the remaining 4 justices who voted in the majority in Boumediene won’t likely want to take on another Gtmo case. So with her possible fifth vote no longer looming over it, the Court of Appeals for the D.C. Circuit—three times overruled in the major detainee cases by the Supreme Court since 9/11, and very clearly now the most conservative Court of Appeals bench in the country—has assumed the role of final arbiter of the law governing the individual cases.

That happened quietly. While most of us were consumed in the wake of Boumediene with fighting over the procedural shape habeas hearings would take, the first case (Kiyemba v. Obama) to go to the Court of Appeals involved a group of Uighur men everyone agreed were wrongly held, but who needed asylum from their home country (China). The D.C. Circuit decided that they could not be released into the United States, even though no other country would take them. The lower courts have read this to mean they have no power to order release, period—anywhere. That is decidedly not what Kiyemba stands for–it’s really about the power of the political branches to control immigration–but the Court of Appeals is not without fault in this reading: it issued a summary ruling overturning an order that the State Department merely report on its progress repatriating a man who won his case.

As a result, the cases of men who have been cleared by Obama’s Task Force have been nearly uniformly stayed at the government’s request–after all, once the government says it wants to try to release them, what more can the district courts do but cheer them on if they cannot order release? Instead, the courts issue what we call “Kiyemba orders” after someone wins their habeas case: “the Court further orders the Government to take all necessary and appropriate diplomatic steps to facilitate Petitioner’s release forthwith.” For a long time after the Rasul Supreme Court decision in 2004, we pointed out that no one had been released by court order despite the many years that decision was on the books. That’s still basically the case today: 7 years after our first win in Rasul and three years after Boumediene, we still have not had a single detainee released because of compliance with a mandate issued by a court.

The net result is that the easiest cases—those of men who are cleared for transfer and languishing only because of the inertia of the political branches—are not the ones going forward in court. As to the harder cases, a series of D.C. Circuit opinions have left those clients in a nearly hopeless situation as well, as my next post will lay out.

Mary-Christine Sungaila –


In the three months after the Wal-Mart decision was issued in June, it was cited in almost 90 district court cases and a handful of circuit court opinions. Many of those opinions decertified previously certified classes and denied certification of proposed classes in cases ranging from product liability to employment and consumer claims. Some state courts, too, have denied certification, citing Wal-Mart and noting that their state’s certification rule was substantially similar to the federal one. So it is safe to say Wal-Mart has had widespread impact across various jurisdictions and areas of law.

Of particular interest now are the state-based and regional class action complaints being separately filed by various plaintiffs in the Dukes case, post-USSCT decision. Certainly, counsel will be watching what happens in those cases. However, it is unlikely that, under the same pattern or practice theory, storewide or regional class actions will survive the Supreme Court’s decision because the necessary “glue” between a company-directed practice or policy of discrimination and the individual discretionary decisions by store managers would be lacking.

Recommended Citation: Aaron Tang, Today in the Community: November 8, 2011, SCOTUSblog (Nov. 8, 2011, 8:35 AM),