Supreme Court Watch

Mikaela says:
A social studies reminder of how our government is designed to work in the ideal (because you may not have seen it a while).





For those of you feeling secure that the decision handed down Thursday reinstitutes the "check" in check and balance in Hamdan vs. Rumsfeld, here's the vote breakdown, courtesy Democracy Now:

In a landmark decision the Supreme Court has rebuked the Bush administration for forming military tribunals to try prisoners at Guantanamo Bay. In a five to three ruling, the court said the military tribunals violated both the Uniform Code of Military Justice and the Geneva Convention.

The impact of the case is expected to go well beyond Guantanamo as the justices ruled that the so-called war on terror must be fought under international rules. ... The court ruled that the Geneva Convention must apply to detainees captured in the war on terror.

The Los Angeles Times reported “The real blockbuster in the Hamdan decision is the court's holding that Common Article 3 of the Geneva Convention applies to the conflict with Al Qaeda — a holding that makes high-ranking Bush administration officials potentially subject to prosecution under the federal War Crimes Act.”

In Thursday’s ruling, Justice John Paul Stevens wrote “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”


Voting in favor of the military tribunals were three justices: Antonin Scalia, Samuel Alito and Clarence Thomas. For the first time in his 15 years on the court Thomas read part of his dissent from the bench. He said the court’s decision would ’sorely hamper the president’s ability to confront and defeat a new and deadly enemy.’” Chief Justice John Roberts abstained from the case because he had ruled on the case in favor of the military tribunals when he served as a federal judge. Unknown at the time of that ruling was that Roberts was already being interviewed by the White House for a seat on the Supreme Court.

From Washington Post:

With the departure of centrist Justice Sandra Day O'Connor, the court is now frequently split between two four-justice liberal and conservative blocs, with Kennedy as the sole remaining swing voter.

An eclectic and sometimes inscrutable moderate conservative, Kennedy repeatedly cast the decisive vote on the most polarizing issues the court faced, from President Bush's military commissions, to the Clean Water Act, to the death penalty. He is poised to do so again next term when the court takes up the issues of abortion and school integration.

...In the 17 cases during the 2005-2006 term that were decided by five-vote majorities, Kennedy was on the winning side 12 times, more than any other justice, according to figures compiled by the Supreme Court Institute.

In six of those cases, Kennedy voted with the conservative bloc, made up of Roberts, Alito, Antonin Scalia and Clarence Thomas. As a result, the court upheld most of Texas's Republican-drafted redistricting plan, restored the death penalty in Kansas, and ruled that police do not have to throw out evidence they gather in illegal no-knock searches.

But four times, Kennedy, a 1988 appointee of President Ronald Reagan, defected to the liberal justices, John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

As a result, the court not only struck down Bush's military commissions, but also ruled that the police need permission from both occupants to search a home without a warrant, gave a Tennessee death row inmate a chance to win a new trial, and said that Texas violated the Voting Rights Act by diluting the voting power of Latino Democrats in one district. (Twice Kennedy was part of mixed left-right coalitions.)

...Indeed, Kennedy is disliked by many conservatives because he has voted with liberals to uphold gay rights and abortion rights, and to strike down the juvenile death penalty.

...Though Kennedy is on record in favor of Roe v. Wade , the 1973 decision that recognized a right to abortion, he dissented angrily from a 5 to 4 ruling in 2000 that struck down a state law banning partial-birth abortion.

...Kennedy has always voted against affirmative action, most recently in 2003 when he voted against race-conscious admissions policies at the University of Michigan's law school and undergraduate program.

From Slate:

But more crucially, Kennedy has appropriated O'Connor's trick of writing either an opinion or a concurrence that goes on to become the law of the land. O'Connor was famous (and not always in a good way) for signing on to an opinion, but on narrower grounds than the other four justices in the majority. The trick is that the justice who decides the case most narrowly then speaks for the whole court. And that's how O'Connor imprinted her views on an awful lot of jurisprudence.

But unlike O'Connor, who invariably pooh-poohed her pivotal role on the court (always claiming that she had only one vote, like every other justice), Kennedy is said to relish it. In his controversial book Closed Chambers, Edward Lazarus, a former clerk for Harry Blackmun, claimed that Kennedy actively seeks out these pivotal positions on the court, deliberately staking out positions that would make him a "necessary but distinctive fifth vote for a majority."

...The fact that Anthony Kennedy is rumored to be somewhat suggestible—easily influenced by his colleagues, the media, his affection for foreign things—makes his critics even more nervous.

...If Edward Lazarus was correct in characterizing some vital Kennedy decisions as the fruits of "a tug-of-war for Kennedy's mind" between his law clerks, just imagine how fascinating it has become to see that same, higher stakes, tug of war playing out, not only behind the oak doors of judicial chambers but in the courtroom, in the newspapers, and among the justices themselves.

From James Dobson, who famously called Kennedy "the most dangerous man in America," to oral advocates at the court, who increasingly respond to the justice at oral argument with a reverence usually reserved for conversations with the Burning Bush, efforts to influence Kennedy are no longer limited to case conference. The hottest game in current Supreme Court brief-writing is to quote Kennedy gratuitously and often. Even if you find yourself citing an asterisk in the footnote of a Kennedy dissent, inserting something flattering to Kennedy is almost as important as running the spell check.

The other justices are playing the quote-Kennedy game, too, presumably in hopes of wooing him to their side and keeping him there. Read the opinions and dissents in Rapanos v. United States, the major Clean Water decision that came down earlier this month. Embedded within are coded love notes to Kennedy.

The justices may also be cozying up to Kennedy in other ways: He won himself some sweet writing assignments this term (data from the Georgetown Supreme Court Institute's term overview shows him authoring five of the term's most "high profile" opinions. Most of his colleagues authored one or two). Some court-watchers have suggested that the bizarre trio of Stevens, Kennedy, and Chief Justice Roberts, who jointly issued a strange concurring opinion in the refusal to hear Jose Padilla's case this past April, was yet another effort by the court's liberal and conservative leaders to show Kennedy more love. Roberts is a savvy insider who knows that over the years the abuse heaped upon the court's moderates from the right has pushed them into the arms of the court's liberals. Make no mistake about it: Justice Kennedy is now being love-bombed.

Dan Froomkin provides an excellent summary of media commentaries here.

New York Times' take here.