The Supreme Court Denies Review in the Case of "Dirty Bomber" Jose Padilla, But an Unusual Troika of Justices, Including the Chief, Issues a Warning to the Government

By MICHAEL C. DORF

Wednesday, Apr. 12, 2006

Last week, the case of American citizen Jose Padilla, once accused of plotting to plant a "dirty bomb" in an American city, took another unusual twist. The Supreme Court declined to hear Padilla's challenge to the government's initial decision to classify him as an enemy combatant subject to military detention.

Under the Supreme Court's rules, if four Justices want to review a decision of a lower court, the petition is granted. In Padilla's case, only three Justices--David Souter, Ruth Bader Ginsburg, and Stephen Breyer--voted to hear the case. Yet even this decision not to decide--which sparked two written opinions--was revealing of how the Justices may ultimately view executive claims to deference on matters of national security. In particular, the separate opinions suggest that Chief Justice Roberts may be more committed than most observers would have guessed, to a substantial judicial role in defending civil liberties against executive encroachment.

The Background: Proceedings in the Padilla Case Thus Far

As I explained in a column earlier this year, the government's treatment of Padilla has been inconsistent at best. When he was first arrested by FBI agents in Chicago in May 2002, he was held on a material witness warrant. He was next transferred to military custody, based on the President's purported authority to treat him as an enemy combatant (even though Padilla was picked up nowhere near a battlefield).

A long sequence of victories and defeats in Padilla's case culminated in a ruling last September by the Eleventh Circuit Court of Appeals that the President had the power to hold him in military custody. Yet before the Supreme Court could review that decision, the government transferred him to civilian custody for a criminal trial.

That transfer raised the issue of whether the case was moot: With Padilla having finally gotten the transfer he desired, was there any live case left for the Court to resolve?

Without what the Constitution calls a "case" or "controversy," the federal courts lack jurisdiction. But if the executive can unilaterally moot cases just before courts decide them, then it may be able to keep certain issues from the courts indefinitely--thus avoiding any adverse decision even when acting unconstitutionally.

How the Case Split the Justices

Notably, Justice Ginsburg wrote a short dissenting opinion explaining why she thought the Court should have taken the case. According to Justice Ginsburg, the fact that the government has transferred Padilla from military custody to civilian custody did not render his challenge to the military custody moot. That transfer, she said, did not deprive the Court of the opportunity to review whether the government had the authority to hold Padilla in military custody in the first place. "Although the Government has recently lodged charges against Padilla in a civilian court," she wrote, "nothing prevents the Executive from returning to the road it earlier constructed and defended." Thus, she concluded that the case fell within a familiar exception to the rule that federal courts do not hear cases that are moot--the exception for cases that are "capable of repetition yet evading review."

We do not know what the six Justices in the majority thought about the mootness question, because they did not directly address it. However, in a separate opinion concurring in the denial of review, Justice Anthony Kennedy explained that there were "prudential" reasons for denying review. Whether or not the case was technically moot, he noted, Padilla had already received the relief he originally sought in his habeas corpus petition: The government transferred him from military to civilian custody late last year.

However, Justice Kennedy went on to warn the government that the Supreme Court and the lower courts stand ready to enforce Padilla's rights--including the right to a speedy trial and to habeas corpus review--should the government continue to dither with Padilla.

Perhaps most intriguingly, Kennedy's opinion was joined by both Justice John Paul Stevens, who is generally considered liberal in matters such as these, and Chief Justice Roberts, who, most observers had assumed, would tend to be deferential to the Executive Branch in military custody cases. The latest Padilla decision casts doubt on that assumption.

Justice Kennedy's Warning

The not-so-subtle message from Justice Ginsburg was that the government was manipulating the case to avoid establishing an unfavorable precedent. Although Justice Kennedy did not go quite that far in his concurring opinion in last week's denial of review, he too expressed concern about government chicanery, indicating that the federal courts would have none of it.

He wrote: "Were the Government to seek to change the status or conditions of Padilla's custody," the federal district "court would be in a position to rule quickly on any responsive filings submitted by Padilla. In such an event, the District Court, as well as other courts of competent jurisdiction, should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised." To drive home the point, Justice Kennedy added that Padilla "retains the option of seeking a writ of habeas corpus in" the Supreme Court itself.

Why is that significant? Because the Supreme Court almost never exercises its power to grant writs of habeas corpus directly, preferring in the usual course to direct petitioners to re-file their cases in federal district court. By specifically mentioning--"threatening" would not be too strong a word--the availability of a habeas corpus action originating in the Supreme Court, Justice Kennedy was expressing thinly disguised annoyance with the government's vacillation with respect to Padilla.

Reading the Chief Justice's Tea Leaves

What are we to make of the fact that Chief Justice Roberts joined Justice Kennedy's warning to the government?

Perhaps not much. After all, conservative Fourth Circuit Judge J. Michael Luttig, who has generally granted the government great deference in the detention cases, also appeared to run out of patience in the Padilla case.

Late last year, Judge Luttig refused to order Padilla's transfer from military to civilian custody, on the ground that the government had failed to explain why, after seeking and obtaining judicial validation of its treatment of Padilla as a military detainee, it had suddenly decided to give him a civilian trial. (Shortly thereafter, however, the Supreme Court ordered Padilla transferred, because that was what both he and the government wanted.)

It is thus quite possible that Chief Justice Roberts, like Judge Luttig, remains generally favorably disposed to the government's arguments in the military detention cases, but that he was miffed by the government's waffling with respect to Padilla.

There is, however, another possibility. It has been widely assumed that Chief Justice Roberts would be generally sympathetic to the government's arguments for deference in its classification of detainees in terrorism-related cases. In part this assumption is based on his overall conservatism. It is also based in part on his vote, while an appeals court judge, in the case of Hamdan v. Rumsfeld, which rejected the argument that persons charged with war crimes are entitled to be tried by courts martial, rather than by the military commissions that the Bush Administration has established. The appeal from that ruling was recently argued before the Supreme Court, but Chief Justice Roberts did not participate because, under longstanding principles of judicial ethics, a judge or Justice cannot sit on the appeal from a ruling in which he himself participated.

If the Chief Justice's vote on the Hamdan case in the appeals court signaled a willingness to defer to the political branches in how they structure military justice, then his joinder in Justice Kennedy's warning to the government in the Padilla case may signal a limit to that deference when it comes to the power of the civilian courts to guard their own jurisdiction.

An Irony in the Hamdan Case: Roberts' Recusal May Actually Help the Government

If so, that in turn suggests a further twist in the Hamdan case. It has been widely assumed that the recusal of Chief Justice Roberts would benefit Hamdan and other detainees because, as the Hamdan case itself illustrates, Roberts is sympathetic to the government. But as it was argued to the Supreme Court, the Hamdan case presented two main sets of issues: First, there were questions surrounding the validity of the military commissions set up to try people like Hamdan. Second, there was a new jurisdictional question occasioned by the recent enactment of a law restricting the ability of detainees at Guantanamo Bay Naval Base to bring habeas corpus actions.

The key jurisdictional issue in Hamdan is whether that new law--adopted after the D.C. Circuit ruling in Hamdan, but before the Supreme Court heard argument in the case--applies to already-filed habeas petitions like Hamdan's, or only to new petitions. The fact that Chief Justices Roberts joined Justices Kennedy and Stevens in last week's Padilla decision, which asserted a muscular view of habeas corpus, suggests that if he were not recused in the Hamdan case, the Chief Justice might well rule against the government on the jurisdictional issue. And because the jurisdictional issue could end up being more important for at least some future cases than the underlying substantive issue in Hamdan, that would mean that the government would actually benefit from the fact that Roberts is recused.

These are, of course, nothing more than speculations. What is not speculation is the fact that the new Chief Justice--like every one of his predecessors--has already put substantial distance between himself and the positions of the Administration that just months ago nominated him to the Court.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century.

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