The other day, long-detained U.S. citizen and alleged "enemy combatant" Jose Padilla fell one vote short of persuading the Supreme Court to hear his challenge to the Bush administration's effort to hold him indefinitely without court review. Padilla needed four votes to have his case heard and mustered only three - from Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. But three other justices, including Chief Justice John Roberts, appeared ready to rebuff the Bush administration's thumbing its nose at the concept of judicial review. And one other justice, Antonin Scalia, already has said that indefinitely detaining American citizens, even in the war on terror, is unconstitutional. That probably leaves only two justices - Justices Thomas and Alito - potentially poised to back the administration's rather breathtaking assertion that our system of checks and balances isn't really so checked and balanced after all.
We already know Justice Thomas' view from a 2004 case, Hamdi v. Rumsfeld, an 8-1 decision where he issued the lone dissent. A true believer in the radical theory that the president basically can do whatever he wants, without judicial oversight, simply by saying it somehow implicates his commander-in-chief powers, Justice Thomas is the Bush administration's best friend. And the Constitution's worst. Justice Alito's silence in Padilla ominously - but not conclusively - suggests he may follow suit if given the chance. Were he to do so, all of the fears, expressed during recently-concluded confirmation hearings, about Justice Alito being excessively deferential to presidential authority would quickly be realized.
Jose Padilla, as you'll recall, is the American citizen arrested at O'Hare International Airport in 2002, accused of plotting to plant a dirty bomb by then-Attorney General John Ashcroft, and held without charges by the military for more than three years as an "enemy combatant" while the government claimed that he had no right to challenge his detention and, for much of that time, that he had no right even to see a lawyer. Then in 2006, as his claims of unlawful detention were pending before the Supreme Court, the Bush administration suddenly transferred Padilla to civilian custody and charged him with crimes unrelated to the alleged dirty bomb plot - and presto, a legally dubious, years-long detention suddenly becomes a perfectly legal, perfectly ordinary criminal prosecution.
Most observers believe that the Bush administration transferred Padilla in order to avoid a Supreme Court confrontation that might well undermine its claims of expansive executive power. Reading the tea leaves from yesterday's ruling, the Bush Administration was probably wise to have done what it did.
It knows where Justices Ginsburg, Breyer, Souter and John Paul Stevens probably are - against it, given their rulings in past cases. It knows where Justice Scalia probably is, since two years ago, in the Hamdi case, he eloquently asserted that "[t]he very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive." And now, to their credit, it's somewhat (but only somewhat) clearer where Justice Kennedy and Chief Justice Roberts are, too.
In their unusual opinion explaining why they were declining to take the case, Justices Kennedy, Roberts and Stevens reasoned that Padilla had already received the tangible result that he sought - being released from military custody. Nevertheless, they expressed deep concern about Padilla's prior military detention, the possibility of future military detention, and the "fundamental issues [his claims raise] respecting the separation of powers, including consideration of the role and function of the courts ...." Further emphasizing that the administration's dismissive view of the courts was pushing the envelope, they warned that the federal courts, including the Supreme Court itself, stood poised "promptly to ensure that the office and writ of habeas corpus are not compromised" if "the government [were again] to seek to change the status or conditions of Padilla's custody." That the Court would remind the administration of its rarely available "original" habeas corpus jurisdiction is particularly noteworthy, showing just how seriously these justices would view the administration's continued use of procedural shenanigans to defeat Padilla's requests for judicial review.
Given his earlier dissent in the Hamdi case, it was entirely unsurprising that Justice Thomas declined to join Justice Kennedy's explanatory opinion. We know he doesn't agree. But the fact that Justice Alito refused an easy opportunity to question the administration's arrogant behavior does not exactly inspire confidence. We hope we're wrong, but the country may find out sooner, rather than later, that the president got just what he wanted with Justice Alito.