Supreme Indifference, or The Craven Court

They punted on Padilla again.

Mr. Jose Padilla is an American citizen, arrested peacefully on American soil, who was about to go to trial in New York in June 2002 when the Bush administration announced he had tried to build a "dirty" (radioactive) bomb, labeled him an "enemy combatant," and locked him up in the brig. Mr. Padilla's lawyers appealed on his behalf, demanding for Mr. Padilla the simple right to be charged with a crime--a right for free men as old as the Magna Carta.

A year-and-a-half later, in December 2003, the Second Circuit Court of Appeals heard Padilla's case and agreed with his demand in 2-1 decision. This time, the Justice Department appealed. So in June 2004 the Supreme Court finally got to rule on Mr. Padilla's case... and in a 5-4 ruling the justices punted and sent the case back to the lower courts, citing the rather questionable technicality that the lawsuit was filed in the wrong jurisdiction (they said his lawyers should have appealed in South Carolina, where Padilla was being held, rather than in New York, where he was arrested). Justice Stevens wrote in his dissent that the case was, "of profound importance to the Nation," but the court did not act.

So it went back to the lower courts, and in June 2005, Padilla's lawyers asked the Supreme Court to hear the appeal directly, as it was rather obvious it would wind up in their lap sooner or later, and by that point Padilla had been in jail without charge for three years. But the Supreme Court punted again and remanded it to the Fourth Circuit court of appeals.

In September 2005, the Fourth Circuit ruled that Bush did indeed have the authority to detain Padilla--and so, as expected, Padilla's lawyers appealed to the Supreme Court. But in November 2005, less than a week before the petition would have reached the Supreme Court, the Justice Department abruptly reversed course in November 2005 and indicted him in Miami on crimes that had nothing to do with a "dirty bomb." The government asked the Fourth Circuit to release Padilla (a routine request) and were stunned when an angry Fourth Circuit denied the request, insisting that the Supreme Court needed to hear the case.

But in January 2006, the Supreme Court punted again. They overruled the Fourth Circuit and allowed the military to transfer Padilla to Miami to face the charges (he pleaded not guilty.) Still, Padilla's lawyers asked the Supreme Court once more to hear the man's case, insisting that the four years he had been held without charge was something that could not be overlooked, and could not be swept aside just because the government changed its mind when the slow wheels of justice finally turned.

So now, in a 6-3 decision (which Stevens joined, incidentally) the justices sidestepped it again. This time, they said it was moot because the Bush administration had granted Padilla the principal relief he asked for--a criminal indictment. (Of course, if the Supreme Court had not overrulled the Fourth Circuit in January, this excuse would not have been available to them.)

The Supreme Court has started doing this quite a bit lately.

They punted on the Newdow ("Under God") pledge-of-allegiance case too. Newdow as plaintiff and attorney gave eloquent, personal arguments before the court. But rather than trying to decide where the line between ceremonial deism and state-sponsored indoctrination fell, the Supreme Court ruled against Newdow on a technicality, saying that Mr. Newdow did not have standing to bring the case on his daughter's behalf. Since that time, several parents and children with bedrock standing to bring the same suit have done so--with Newdow as the attorney. And in November 2005, a judge sided with Newdow (but sensibly stayed his order pending appeal). It is on its way to the Ninth Circuit.

If Supreme Court justices, men and women (well, woman) with lifetime appointments, are so afraid to answer the questions brought before them that they must weasel out of their duties time and time again on technicalities, while hundreds of people remain in custody for years without even being charged with a crime... what hope is there for anyone? Shame on them! The last time they showed any guts was in Lawrence v. Texas (2003)--and the last time they showed any guts in the face of the Executive branch was Clinton v. Jones (1997).

Some of you will say, wait a minute--"What about the Hamdi case? Did they stand up then?" Didn't Justice O'Connor say that war powers were not a blank check for the President? And I say: look at the results. In the case of Yaser Hamdi--another U.S. citizen arrested as an enemy combatant (although he was picked up in Afghanistan, not the U.S.)--the court in a split decision finally said Hamdi had some right to challenge the label of "enemy combatant" in some forum... but they said so little about what was required that the decision was almost meaningless.

And it was treated as such. The Bush Administration ignored the court, stripped Hamdi of his citizenship three months later, and exiled him to Saudi Arabia--still never having charged him with anything. Then the Justice Department set up kangaroo courts (excuse me, "military tribunals") offering minimal due process if any, and even so, these tribunals have yet to hear a fraction of the cases. And now the Republican Congress has passed a law saying that Guantanamo Bay inmates can't even get access to these tribunals.

Want to know what a "blank check" looks like? Try the Kennedy/Roberts/Stevens opinion denying the writ of certiori (again) to Mr. Jose Padilla. I quote:

That Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical.

(In other words, the "enemy combatant" question is too big to tackle, even though it's four years late and they wouldn't even have to set Padilla free or change his status in any way). Only Justice Ruth Bader Ginsburg had the courage and indignation (and the balls?) to write in her dissent that the Court ought to have decided the case two years ago instead of chucking it out on a technicality--and she threw Stevens' words about "profound importance to the Nation" back at him.

The nobles who wrote the Magna Carta so many centuries ago would not have stood for this. They would have known that a craven court is no court at all.

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
Magna Carta (Article 39. In translation)