Reading Padilla‘s Tea Leaves
on Apr 3, 2006 at 11:01 am
Even if it were not already evident from the Hamdan proceedings that Justice Kennedy has the power to determine the constitutional law of the war on terrorism, today’s denial of certiorari in Padilla confirms it. It is striking that Justice Kennedy’s opinion is joined by the Chief Justice and Justice Stevens: Both sides of the Court are understandably eager to woo Justice Kennedy’s vote, which of course means that Justice Kennedy has a great deal of leverage in these cases. (For a sense of where he might be on the merits of some of the more important questions in the Terms to come, see his opinions in Alvarez-Machain, Rasul and Chavez v. Martinez.)
In Padilla, evidently Justice Kennedy was not prepared to give either side of the Court the necessary assurance of his views on the merits; this might explain, for example, Justice Stevens’s decision not to provide the fourth vote for certiorari (although it’s certainly possible that Justice Stevens simply agrees with Justice Kennedy that consideration of the merits would be premature).
The Administration might be heartened by the Court’s decision not to review Padilla’s military detention. (Recall that in the Hamdi and Padilla cases in 2004, five Justices (Stevens, Scalia, Souter, Ginsburg and Breyer) already signaled that they thought Padilla’s detention was unlawful — and that doesn’t even include Justice Kennedy, who was silent on the question.) The Administration’s shell game, including the ploy of moving Padilla to the civilian justice system just as the case was teed up for the Court, therefore might pay off. But as Lyle notes, a careful reading of Justice Kennedy’s opinion suggests that they’d better be careful about overreaching.
If the Administration were to attempt to return Padilla to military custody — for example, after an acquittal on the criminal charges — or if the Defense Department were to detain indefinitely another citizen captured in the United States, Justice Kennedy has sent a strong signal that such a move would be met with disfavor:
Were the Government to seek to change the status or conditions of PadillaÂ’’s custody, [the 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. Padilla, moreover, retains the option of seeking a writ of habeas corpus in this Court.
This warning has significant implications, not only if Padilla is acquitted, but also before his trial. So long as the Government could threaten Padilla with a return to indefinite military detention, it held a powerful stick in plea negotiations, which could be used to induce Padilla to plead guilty, and/or to weaken the terms of any plea agreement. But in light of Justice Kennedy’s shot across the bow, Padilla has some leverage that he otherwise might not have had.
