Take That, Linda Greenhouse!
Today's unequivocal opinion in Boumediene v. Bush will provide grist for numerous mills---legal and political---for years to come. Here I'll note three quick thoughts (with apologies for stepping on Neil's post, but the magnitude of the news demands a quick response):
1) The highly charged 5-4 ideological split, with Justice Kennedy swinging liberal, shows that analyses of this Term as less ideological than last Term---such as this one by Linda Greenhouse---were premature, and based on relatively low stakes cases. If, as I suspect, the Court decides Heller (the DC gun case) by a 5-4 margin (with Justice Kennedy likely swinging conservative there), no one will care that there were some non-ideological splits in lower-profile cases.
2) Based on my preliminary perusal of Justice Kennedy's opinion, it appears that he rejects a territorial test in favor of a functional test. That suggests that moving Gitmo prisoners to places that are more clearly outside US sovereignty---such as Bagram Airbase in Afghanistan---will not extinguish their habeas rights.
3) The political implications of today's ruling are not yet clear. The McCain campaign's recent statements that Sen. McCain supports the Bush warrantless wiretapping program indicate that Republicans will try to portray Obama as soft on terrorists. If I were advising the Obama campaign, I'd use today's decision as a shield along the following lines: "Even the Supreme Court, in an opinion authored by an appointee of President Reagan, and joined by appointees of Presidents Ford, the first Bush, and Clinton, recognized the excesses of the George W. Bush policy." Of course, the warrantless wiretapping program is distinct from the habeas issue, but hardcore Bushies defended both on grounds of Presidential power, and the average voter is not paying close attention.
I'd love to say more on this case, but now need to take off from blogging until Monday of next week because of my travel schedule. I invite discussion in the comments and further analysis by my co-bloggers.
Posted by Mike Dorf
1) The highly charged 5-4 ideological split, with Justice Kennedy swinging liberal, shows that analyses of this Term as less ideological than last Term---such as this one by Linda Greenhouse---were premature, and based on relatively low stakes cases. If, as I suspect, the Court decides Heller (the DC gun case) by a 5-4 margin (with Justice Kennedy likely swinging conservative there), no one will care that there were some non-ideological splits in lower-profile cases.
2) Based on my preliminary perusal of Justice Kennedy's opinion, it appears that he rejects a territorial test in favor of a functional test. That suggests that moving Gitmo prisoners to places that are more clearly outside US sovereignty---such as Bagram Airbase in Afghanistan---will not extinguish their habeas rights.
3) The political implications of today's ruling are not yet clear. The McCain campaign's recent statements that Sen. McCain supports the Bush warrantless wiretapping program indicate that Republicans will try to portray Obama as soft on terrorists. If I were advising the Obama campaign, I'd use today's decision as a shield along the following lines: "Even the Supreme Court, in an opinion authored by an appointee of President Reagan, and joined by appointees of Presidents Ford, the first Bush, and Clinton, recognized the excesses of the George W. Bush policy." Of course, the warrantless wiretapping program is distinct from the habeas issue, but hardcore Bushies defended both on grounds of Presidential power, and the average voter is not paying close attention.
I'd love to say more on this case, but now need to take off from blogging until Monday of next week because of my travel schedule. I invite discussion in the comments and further analysis by my co-bloggers.
Posted by Mike Dorf