June 29, 2007
And this is what I get
. Like, the biggest news in 9/11 detention jurisprudence since, well, I dunno, maybe Hamdan and Rasul. Hell, maybe since the opening of Gitmo itself.
Rejecting Bush administration arguments, the Supreme Court reversed course and agreed Friday to review whether Guantanamo Bay detainees can use the civilian court system to challenge their indefinite confinement.
The administration argues that a new law strips courts of their jurisdiction to hear detainee cases. The justices took the action without comment along with other end-of-term orders.
In April, the court turned down an identical request, although several justices indicated they could be persuaded otherwise.
The move is highly unusual.
Highly unusual doesn't cover the half of it. Here's the actual process for the Supreme Court to grant what's called certiorari---the legal writ that a petitioner files to the Court asking it to hear a particular case. First, the clerks usually review the petitions, then they write them up in brief, then they go to the Supreme Court "conference," a highly secretive meeting of the justices, where they vote on whether to take a case or not (I believe the only time we've really had an intimate glimpse of what happens in conference is in the Woodward book, The Brethren, but I could be wrong about that).
Anyhow, so the justices vote under the "Rule of Four," meaning that if four justices vote to take the case, the case gets taken. The chief justice then assigns the decision, oral arguments are heard, the justices write the opinion and try and finagle other justices to join, other opinions are drafted if the decision fractures the court, and voila, you get a Supreme Court opinion.
Now, according to the AP, and I'll do some independent digging, for the Court to reverse course on a case that was denied cert (nerdy lawyer jargon for certiorari), FIVE justices have to sign on. So, today's developments mean that TWO additional justices (Stevens and Kennedy, who both voted not to hear the case on technical grounds---they said it was "unripe," meaning not fit for adjudication) had their minds changed in the last several months and joined the three who voted to hear the case. The other four conservatives must be livid.
As Anthony Romero called it, and I heartily concur, this is just another piece of Gitmo-mentum.
More as I get it.