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Online Alexander Bickel Symposium: The passive virtues as means, not ends

Stephen I. Vladeck is Professor of Law and Associate Dean for Scholarship at American University Washington College of Law.  He is a senior editor of the Journal of National Security Law & Policy. His recent writings have focused on the role of the federal courts in litigation arising out of the war on terrorism, especially the relevance of new research into the historical scope of habeas corpus in defining the scope of the Suspension Clause (Harvard Law Review), and the troubling inversion of the relationship between state and federal remedies in post-September 11 Bivens suits (co-authored with Carlos Vázquez; forthcoming in the University of Pennsylvania Law Review).

Deciding not to decide: The Supreme Court and the detainee litigation

The summer after the Supreme Court’s 2011 Term seems a strange moment to reflect upon Alexander Bickel’s The Least Dangerous Branch – and his Harvard Law Review Foreword on the “passive virtues” that preceded it. After all, “passive” could be just about the most inapt word to use to describe a Court that just decided Arizona v. United States and NFIB v. Sebelius, and that will soon confront the constitutionality of race-based affirmative action (to say nothing of the constitutionality of the Voting Rights Act of 1965 or of state bans on gay marriage).

At least with regard to hot-button social issues, the Court in the near term appears generally uninterested in relying on justiciability doctrines or other avenues for judicial restraint (e.g., the Tax Anti-Injunction Act) to avoid reaching the merits of high-profile constitutional questions. This reality is only that much more significant given that, as Kathryn Watts points out in her contribution to this symposium, the movement toward an almost entirely discretionary docket (much of which post-dated Bickel) has made it possible for the Justices to be passively virtuous without deigning to explain themselves.

And yet, if one can look past the glare of these headline-grabbing cases, it is impossible to miss Bickel’s long shadow looming over the contemporary Court – especially in its approach to disputes arising out of the war on terrorism. I’ve elsewhere described (and critiqued) what might be called the “passive-aggressive” virtues of the Court’s national security docket over the past decade, wherein the Justices have repeatedly asserted their authority to decide the difficult substantive questions that have arisen out of governmental counterterrorism policies, only to decline to actually provide answers except when requested to do so by the federal government. That narrative seems particularly poignant at the end of a Term in which,  despite substantial and sustained charges that the D.C. Circuit has willfully (if not gleefully) eviscerated the Court’s 2008 extension of the Suspension Clause to non-citizens detained at Guantánamo in Boumediene v. Bush, the Justices denied each of the seven cert. petitions arising out of a Guantánamo habeas case – including an appeal of the first post-Boumediene D.C. Circuit decision that provoked a dissent on the merits. But whereas each of these denials came without any explanation, Bickel’s shadow hovers over the three opinions that the Justices have provided explaining their decisions not to decide high-profile detainee cases:

First, in April 2006, Justice Anthony Kennedy penned a concurrence in the denial of certiorari joined by Chief Justice John Roberts and Justice John Paul Stevens (the only opinion featuring that line-up in the five Terms during which the trio served together) in Padilla v. Hanft (“Padilla II”). In Padilla I (2004), the question had been whether the government could detain a U.S. citizen arrested within the territorial United States as an “enemy combatant.” The Justices ducked out on a technicality, holding that Padilla had filed his habeas petition in the wrong court. But between the lines, one could easily find five votes for the proposition that Padilla’s detention was, in fact, unlawful. That may explain why, when the case returned to the Court after Padilla re-filed in the proper venue, the government unsealed a civilian criminal indictment against Padilla and transferred him to civilian custody while his cert. petition was pending.

This development, as Justice Kennedy explained, meant that “there are strong prudential considerations disfavoring the exercise of the Court’s certiorari power.” At the same time, however, the concurrence went out of its way to stress Padilla’s “continuing concern that his status might be altered again,” specifically noting that Padilla would have immediate remedies if the government were to seek to return him to military custody, including “the option of seeking a writ of habeas corpus in this Court” (a remedy the Justices have not granted since 1925). Thus, the Padilla II concurrence suggested that the merits of Padilla’s military detention were less important than the ability of the courts in general (and the Supreme Court, in particular) to supervise it, an issue that had been practically – if not formally – mooted by Padilla’s transfer.

To similar effect, consider the joint “statement” by Justices Stevens and Kennedy respecting the denial of certiorari in Boumediene v. Bush (2007), which was subsequently overtaken when the Court reversed course at the end of the 2006-07 Term and (on rehearing) granted review. In explaining why the Justices initially decided to stay their hand, the opinion explained that the Court was merely abstaining in favor of the statutory review provided by the Detainee Treatment Act of 2005. “If petitioners later seek to establish that the Government has unreasonably delayed proceedings under the [DTA], or some other and ongoing injury,” the Stevens-Kennedy statement concluded, “alternative means exist for us to consider our jurisdiction over the allegations made by petitioners before the Court of Appeals.” As in Padilla II, so long as the issue was simply the merits of the claims, and not the power of the federal courts to decide them, there were not four votes to intervene.

But perhaps the best example of this theme can be found in what may well be the Court’s last word on the Guantánamo habeas cases: Justice Stephen Breyer’s four-Justice statement respecting the denial of certiorari in Kiyemba v. Obama (2011). The issue in Kiyemba was the fate of the Uighurs – a group of ethnically Turkic Chinese Muslims held at Guantánamo who fell outside the government’s ongoing detention power. After the district court ordered the government to produce the detainees in a D.C. courtroom, the D.C. Circuit reversed, holding that the detainees had no right to be released into the United States even if they were no longer properly subject to detention at Guantánamo.

The Court then granted certiorari to decide “whether a district court may order the release of an unlawfully held prisoner into the United States where no other remedy is available,” only to vacate and remand when advised by the Obama Administration that the detainees had received “genuine” resettlement offers. Although the D.C. Circuit adhered to its original decision on remand, the Justices declined to intervene the second time. As Justice Breyer explained for himself and Justices Kennedy, Ginsburg, and Sotomayor, “these [resettlement] offers, the lack of any meaningful challenge as to their appropriateness, and the Government’s uncontested commitment to continue to work to resettle petitioners transform petitioners’ claim. Under present circumstances, I see no Government-imposed obstacle to petitioners’ timely release and appropriate resettlement.” As in Padilla II and Boumediene, as soon as the focus changed from the scope of judicial power to the specifics of how it should be exercised, the Justices demurred. The strongest justification for exercising the Court’s power, in other words, was when it was necessary to protect the Court’s power.

One can say a lot more about these (and other) cases, but perhaps the most important evidence of this theory is the Court’s refusal to review a series of lower court decisions that sidestepped claims arising out of, inter alia, the U.S. government’s alleged “extraordinary rendition” of non-citizens to countries in which they were tortured; the NSA’s warrantless wiretapping program; and post-September 11 terrorism convictions, many of which feature lower court judges stressing both the importance and novelty of some of the procedural and evidentiary issues that their decisions have confronted. Put simply, it’s not just that the Supreme Court over the past decade has shown an interest in judicial power in the war on terrorism as an end unto itself – it’s that the lower courts appear to have gotten the same message.

Alex Bickel, Anthony Kennedy, and the ends of separated powers

To be sure, there can be little doubt that strategic voting (and, in Kiyemba, Justice Elena Kagan’s recusal) had a lot to do with the line-ups and results in each of these three cases. But the pivotal role of Justice Kennedy in each is more than just a reflection of his position at the center of the Court. At a far deeper level, one can find such an understanding of judicial power (and of the separation of powers, more generally) throughout Justice Kennedy’s jurisprudence.

For example, in his concurring opinion in Clinton v. City of New York (1998), in which the Court invalidated the Line-Item Veto Act of 1996 (hardly a national security case), Justice Kennedy articulated a view of the separation of powers as both means and end:

[W]e have come to think of liberty as defined by that word in the Fifth and Fourteenth Amendments and as illuminated by the other provisions of the Bill of Rights. The conception of liberty embraced by the Framers was not so confined. They used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term, quite in addition to the idea of freedom from intrusive governmental acts. The idea and the promise were that when the people delegate some degree of control to a remote central authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two. In this vision, liberty demands limits on the ability of any one branch to influence basic political decisions.

To the extent that the “liberty” protected by the separation of powers is equally about “freedom from intrusive governmental acts” and “limits on the ability of any one branch to influence basic political decisions,” Kennedy’s concurrence thereby suggested that the principal goal of the Court’s separation-of-powers jurisprudence should be to protect the separation of powers as such.  That principle holds, so much so that perhaps it prevails even without regard to the potential impact of the challenged governmental conduct on individual rights.

This understanding also pervades Justice Kennedy’s majority opinion on the merits in Boumediene. There the Court held that the jurisdiction-stripping provision of the Military Commissions Act of 2006 violated the Suspension Clause as applied to non-citizens detained at Guantánamo. The Court nonetheless expressly refused to decide whether those detainees had any individual rights under the Due Process Clause.  Less obvious, but perhaps no less significant, is his opinion for a five-four majority in Legal Services Corp. v. Velazquez (2001), in which the Court struck down a federal funding restriction that precluded legal aid lawyers who receive federal funds from challenging the validity of certain welfare laws. Whereas the crux of the holding was that such restrictions interfered with the lawyers’ First Amendment rights, the majority’s analysis was suffused with repeated concerns over the “severe impairment of the judicial function” that the spending restrictions might otherwise effect.

Boumediene and Velazquez are hardly alone. In any number of jurisprudential contexts, one can find a growing number of examples of the Court (with Justice Kennedy’s backing) handing down rulings endorsing broader conceptions of judicial power without a corresponding vision of how that power should be exercised. From the odd procedural maneuverings in the Troy Davis case to the Court’s newfound obsession with “jurisdictionality,” the view across different bodies of doctrine (and, at times, different ideological blocs) reveals a fairly consistent approach to the forward-looking preservation of judicial power, and little more.

And that is where Bickel comes in. In one sense, Justice Kennedy’s vision of the separation of powers appears to be deeply faithful to the passive virtues. After all, the bulk of these cases are at great pains to preserve the role of the federal courts – especially the Supreme Court – as the authoritative expositors of federal law, and, as such, the principal enforcers of constitutional rights.

So too, the central concern animating Bickel’s plea for the “passive virtues” was that a Court seen as unduly interventionist would inevitably dilute its long-term moral and institutional authority. Thus, Bickel offered an encomium to the Justices to rely on justiciability doctrines and other avenues of restraint to avoid unnecessarily reaching constitutional questions, with the goal of preserving the Court’s power in the long term so that it would have the ability and wherewithal to hand down a decision like Brown (or Heller or Citizens United) if and when the time came.

As enigmatic as his thesis was, Bickel always understood the extent to which the back half of his equation drove the front half: that the preservation of judicial power was not an end unto itself, but rather a necessary means of protecting the Court’s ability to act when it really mattered – when the Court was forced to act as a countermajoritarian check in order to preserve its vision of individual liberty. For the Court of Bickel’s day, that vision was one focused on individual rights. For Justice Kennedy, it’s also a vision focused on liberty, but liberty that “demands limits on the ability of any one branch to influence basic political decisions.” As he ended his opinion in Boumediene, Kennedy noted:

Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. (emphasis added).

By Kennedy’s measure, then, the virtue of preserving judicial power would be to do nothing more than ensure that such a “genuine debate” take place. And it is certainly true that reasonable people (including Bickel himself) have disagreed for a half-century on where The Least Dangerous Branch intended to draw the line between judicial intervention and judicial restraint when it came to how the Court should circumscribe its own authority. But I think that the idea that the original Constitution eschews rights because they are less important is certainly not what Bickel had in mind. Quite the contrary:  He sought to validate certain kinds of judicial power in order to better safeguard rights, not to abridge them.

Full disclosure: Professor Vladeck co-authored an amicus brief in support of the petitioner in Boumediene.

Recommended Citation: Steve Vladeck, Online Alexander Bickel Symposium: The passive virtues as means, not ends, SCOTUSblog (Aug. 21, 2012, 12:32 PM),