10:47 AM | Marty Lederman | Comments (0)
As Lyle explains below, the Court today denied the cert. petitions in the Guantanamo detainee cases, choosing instead to wait until the Pentagon's detention decisions have been reviewed by the U.S. Court of Appeals for the District of Columbia Circuit, as prescribed in the Detainee Treatment Act and Military Commissions Act. What this obviously means is that Justice Kennedy was unwilling to tip his hand on the merits either way within the Court. (If either block of four Justices had been confident of gaining his vote, they presumably would have voted to grant the petition.)
Justice Stevens and Justice Kennedy have been the principal architects of the Court's detainee cases, and they wrote jointly today with a stern warning to the government not to delay the proceedings below:
Despite the obvious importance of the issues raised in these cases, we are persuaded that traditional rules governing our decision of constitutional questions, see Ashwander v. TVA, 297 U. S. 288, 341 (1936) (Brandeis, J., concurring), and our practice of requiring the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus, cf. Ex parte Hawk, 321 U. S. 114 (1944) (per curiam), make it appropriate to deny these petitions at this time. However, "[t]his Court has frequently recognized that the policy underlying the exhaustion-of-remedies doctrine does not require the exhaustion of inadequate remedies." Marino v. Ragen, 332 U. S. 561, 570, n. 12 (1947) (Rutledge, J., concurring). [NOTE Justice Stevens's continuing resurrection of the wisdom of Justice Rutledge's wartime decisions -- Marino was a case of which Justice Rutledge and his clerk, one John Stevens, were especially proud -- see Diane Amann's new article, 74 Fordham L. Rev. 1569, 1580-1582.] If petitioners later seek to establish that the Government has unreasonably delayed proceedings under the Detainee Treatment Act of 2005, Tit. X, 119 Stat. 2739, or some other and ongoing injury, alternative means exist for us to consider our jurisdiction over the allegations made by petitioners before the Court of Appeals. See 28 U. S. C. §§1651(a), 2241. Were the Government to take additional steps to prejudice the position of petitioners in seeking review in this Court, "courts of competent jurisdiction," including this Court, "should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised." Padilla v. Hanft, 547 U. S. 1062, 1064 (2006) (Kennedy, J., concurring in denial of certiorari). And as always, denial of certiorari does not constitute an expression of any opinion on the merits. See Rasul v. Bush, 542 U. S. 466, 480-481 (2004) (majority opinion of Stevens, J.); id., at 487 (Kennedy, J., concurring in judgment).
So what now?