Analysis: Hamdan and the prospects of tie votes
on Mar 26, 2006 at 10:37 pm
On Tuesday morning, at 11 o’clock or a few minutes after, Chief Justice John G. Roberts, Jr., is expected to rise from the bench, and depart from the courtroom. He has taken himself out of every preliminary action on the war-on-terrorism case of Hamdan v. Rumsfeld (05-184), so that is expected to continue Tuesday. But his departure raises at least the possibility that the other eight Justices might cast a 4-4 tie vote.
If such a vote comes on the merits, the result will be clear-cut: the Court will have upheld a decision by the D.C. Circuit Court finding no legal defect in ithe war crimes tribunals called “military commissions.” In that event, no precedent would be set, and the Justices will issue no opinion. Still, that would mean that foreign nationals facing war crimes charges would be tried under the system the Pentagon now has in place and ready at the detainee prison at Guantanamo Bay, Cuba. If any were then convicted in such a proceeding, they presumably could attempt to bring some kind of challenge in federal courts, although the scope of that kind of review s in doubt.
But before an eight-Justice Court could rule on the merits in the Hamdan case, it must first satisfy itself that it has jurisdiction to hear and decide that dispute. The Supreme Court’s jurisdiction to hear appeals is not open-ended, so a threshold issue in any case is whether a given lawsuit can, indeed, be decided there. Suppose, though, that the Justices split 4-4 on this issue in Hamdan. What then? The result is not as clear as it would be if the Court proceeded to the merits, and split 4-4.
The jurisdictional question is a more-than-routine issue in the Hamdan case. Congress late last year passed the Detainee Treatment Act, and the Bush Administration is arguing that the Act stripped all courts — including the Supreme Court — of jurisdiction to rule on any pending habeas challenge by any Guantanamo detainee. Salim Ahmed Hamdan’s lawyers, and attorneys for other detainees, dispute that interpretation, and argue that there pre-existing habeas cases should go forward.
This issue has arisen only since the Court agreed to hear the Hamdan case, so there is no lower court ruling on that point being reviewed by the Justices. Thus, were the Justices to divide 4-4, the question arises: does that establish jurisdiction, does it deny jurisdiction, or might it lead to some other outcome?
When the Court is asked to review a direct appeal, only four votes are necessary to find “probable jurisdiction.” (When a case reaches the Court via a petition for certiorari, four votes are needed to grant review; noting probable jurisdiction thus is rather like granting certiorari.) But when probable jurisdiction is noted on an appeal, that is not a final decision on the question of jurisdiction; the Court is entirely free to reexamine the jurisdictional question when it moves ahead with its review of an appeal In view of that, would the Court find jurisdiction in Hamdan with only four votes in favor of that, if that is disputed by four other Justices? There appears to be no precedent to provide an answer.
On the other hand, deciding a direct challenge to jurisdiction, based on a motion to dismiss under a specific jurisdictional statute, may be thought of as akin to deciding the merits of a case. Thus, it may take a clear majority among eight Justices — five — to resolve the issue in favor of jurisdiction. If that is true, a 4-4 vote could mean that the Court has not affirmatively found jurisdiction, and therefore it does not exist. Again, there seems to be no precedent.
The Court in recent years, when it has found it lacks jurisdiction of a pending case, has been in the habit of simply dismissing it without giving any specifics on why it thought jurisdiction did not exist. Would it do that if, in Hamdan, it split 4-4, and the Court then dismissed the case? A lack of an explanation would be a way out of a procedural dilemma, but a frustrating one.
Perhaps there are other options. One for example, would to be return the Hamdan case to the D.C. Circuit Court, with instructions to decide the jurisdictional question as it applies to the war crimes tribunals.. (In fact, the D.C. Circuit is already examining on its own the impact of the Detainee Treatment Act on two packets of pending Guantanamo detainee appeals not pending there, but not involving war crimes defendants.) Should the D.C. Circuit find it had no jurisdiction, the case could then return to the Supreme Court. Would Roberts be able to participate then, at least on the jurisdictional question, since he had not taken part in the Circuit Court ruling on that issue? It would seem a bit awkward.
Maybe another option in the event of a 4-4 tie would be simply to sit on the Hamdan case, without a decision on jurisdiction — indeed, without any decision at all — and wait until the D.C. Circuit has ruled on the detainee law’s impact on the different cases already there. Then, any appeal to the Supreme Court could be heard by all nine Justices, since Roberts would not have taken part in this process at the Circuit Court. A ruling on the jurisdictional issue could then control jurisdiction on Hamdan’s appeal.
(NOTE: At a legal conference Friday in Washington, the issue of a tie vote on jurisdiction in Hamdan was explored informally among a few seasoned Supreme Court advocates. The consensus: a 4-4 vote would not be sufficient to find jurisdiction, so the case would have to be dismissed. Readers of the blog are invited to join in this exploration.)
