Prognostications—Boumediene and Congress

Slate's blog on legal issues.
June 2 2008 4:07 PM

Prognostications—Boumediene and Congress

OK, if you insist, Deborah, a few predictions ... with the caveat that my track record on these matters has been decidedly mixed of late.

First, what will the court do? In Boumediene— unlike in Hamdan , Hamdi , and Rasul— Justice Kennedy almost certainly was assigned to write the "lead" opinion. After oral argument, my prediction was that he was writing for two separate five-justice majorities: (i) For one majority, an opinion holding that Article I's Suspension Clause (and perhaps the Due Process Clause, too) applies to the detainees at Guantanamo; but (ii) for a different majority, holding that the MCA/DTA provision for D.C. Circuit review of CSRT decisions is an "adequate alternative" to habeas, thereby sustaining the constitutionality of the MCA/DTA review system. (In its cert. grant, the court virtually invited the D.C. Circuit to demonstrate that its review of the Pentagon's decisions would be robust; and at oral argument, Justice Kennedy focused on the question of why the D.C. Circuit could not itself ensure compliance with constitutional and statutory standards.)

Advertisement

But then, after Boumediene was argued, the D.C. Circuit issued its en banc opinions in the Bismullah case, which were followed by the Bush administration's own petition to the Supreme Court in that case. Those opinions and that petition demonstrated ...

... continue reading at Balkinization .

TODAY IN SLATE

History

The Self-Made Man

The story of America’s most pliable, pernicious, irrepressible myth.

Michigan’s Tradition of Football “Toughness” Needs to Go—Starting With Coach Hoke

Does Your Child Have “Sluggish Cognitive Tempo”? Or Is That Just a Disorder Made Up to Scare You?

The First Case of Ebola in America Has Been Diagnosed in Dallas

Windows 8 Was So Bad That Microsoft Will Skip Straight to Windows 10

Politics

Mad About Modi


Why the controversial Indian prime minister drew 19,000 cheering fans to Madison Square Garden.


Building a Better Workplace

You Deserve a Pre-cation

The smartest job perk you’ve never heard of.

Don’t Panic! The U.S. Already Stops Ebola and Similar Diseases From Spreading. Here’s How.

Parents, Get Your Teenage Daughters the IUD

The XX Factor
Sept. 30 2014 12:34 PM Parents, Get Your Teenage Daughters the IUD
  News & Politics
Politics
Sept. 30 2014 6:59 PM The Democrats’ War at Home Can the president’s party defend itself from the president’s foreign policy blunders?
  Business
Moneybox
Sept. 30 2014 7:02 PM At Long Last, eBay Sets PayPal Free
  Life
Gaming
Sept. 30 2014 7:35 PM Who Owns Scrabble’s Word List? Hasbro says the list of playable words belongs to the company. Players beg to differ.
  Double X
The XX Factor
Sept. 30 2014 12:34 PM Parents, Get Your Teenage Daughters the IUD
  Slate Plus
Behind the Scenes
Sept. 30 2014 3:21 PM Meet Jordan Weissmann Five questions with Slate’s senior business and economics correspondent.
  Arts
Brow Beat
Sept. 30 2014 8:54 PM Bette Davis Talks Gender Roles in a Delightful, Animated Interview From 1963
  Technology
Future Tense
Sept. 30 2014 7:00 PM There’s Going to Be a Live-Action Tetris Movie for Some Reason
  Health & Science
Medical Examiner
Sept. 30 2014 6:44 PM Ebola Was Already Here How the United States contains deadly hemorrhagic fevers.
  Sports
Sports Nut
Sept. 30 2014 5:54 PM Goodbye, Tough Guy It’s time for Michigan to fire its toughness-obsessed coach, Brady Hoke.