Tag: Anthony Kennedy

Jose, can you see?

“‘Even if the Court were to rule in Padilla’s favor,’ Kennedy went on, ‘his present custody status would be unaffected. Padilla is scheduled to be tried on criminal charges. Any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings.” By a margin of 6-3 (Ginsburg, Breyer, and Souter dissenting), the Supreme Court punts on Padilla, on the grounds that Padilla’s dilemma has been rendered “hypothetical” now that he’s been transferrred into the normal justice system.

Justice Ginsburg disagrees: “This case…raises a question of profound importance to the Nation. Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an ‘enemy combatant’? It is a question the Court heard, and should have decided, two years ago. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.“

Hearing Hamdan.

“The president’s consistent refusal to try the Guantanamo detainees before criminal courts or courts-martial leads a reasonable observer to conclude that the government’s case would fail if it were subjected to scrutiny by an impartial adjudicator. And if that is the only justification for military tribunals, it must be rejected. No one denies that the war on terror presents new challenges to the rule of law. But prosecuting someone with a crime that does not exist, before a commission that does not have rules, simply does not constitute justice under any set of circumstances.” Slate files several dispatches on the important case of Hamdan v. Rumsfeld, which the Supreme Court (without Chief Justice Roberts, who has recused himself…as should probably Scalia) will hear today. Emily Bazelon finds that GOP Senators Kyl and Graham seem to have tried to deceive the Court about the legislative history of their Detainee Treatment Act, while Ariel Lavinbuk suggests a compromise solution: the Supreme Court could “find that ‘conspiracy’ — the only charge against Hamdan — does not violate the law of war.“

Update: The Court hears the case, and it seems a majority — Scalia and Alito notwithstanding — are not amused with the Dubya administration: “Without Chief Justice John Roberts…the argument seemed lopsided against the government.” Still, as was expected to be the norm on the Roberts Court,”the outcome of the case will likely turn on moderate Justice Anthony M. Kennedy.”

Justices and Gerrymanders.

The Bush administration loves it, but many Justice Dept. officials think it’s illegal…Now, it’s the Supreme Court’s turn to weigh in on Boss DeLay’s gerrymandering plan in Texas. “Two years ago, justices split 5-4, in a narrow opening for challenges claiming party politics overly influenced election maps. Justice Anthony M. Kennedy was the key swing voter in that case, and on Wednesday expressed concerns about at least part of the Texas map.” (Rehnquist and O’Connor sided against the map challenge then, so a switch by Roberts or Alito will only mean a larger majority against the DeLay redistricting, should the same votes hold.) Update: Justice Ginsburg finds the subject exhausting, and Dahlia Lithwick reports in.

The Kennedy Era.

“While it’s true that O’Connor has tended to vote with the majority more frequently than Kennedy, and that she has done so in some big 5-4 decisions, it’s also true that in other extremely contentious areas, it is Kennedy, not O’Connor, who has swung the court leftward.” As Dem begin to announce their no votes for Alito (while downplaying the likelihood of a filibuster), Dahlia Lithwick — who is concerned about Alito’s judgment in the relatively precedent-less world of anti-terror-law — gives us hope for the Court’s future in highlighting Anthony Kennedy as the new swing vote. (Clearly, the psycho-right despises him, which speaks well of his jurisprudence in my book.)

Creeping Tom.

Meanwhile on the House side, Boss DeLay has responded to his recent problems by continuing to act like an inveterate jackass, including calling in the NRA as armed backup and badmouthing Justice Anthony Kennedy to anyone who’ll listen on right-wing talk radio. Yet, instead of taking the Hammer to the woodshed, Dubya consigliere Karl Rove has taken Delay to his breast, calling him “a good man, a close ally of this administration.” Well, ok, then, Karl, but don’t complain when further inquiries into DeLay’s corruption redound upon the White House, then.

The Executioner’s Song.

“Fighting over the ‘evolving standards of decency’ underlying the Eighth Amendment’s ban on ‘cruel and unusual punishment,’ the 5-to-4 opinions reflect an all-out war between the proponents of a living (or at least medium-rare) Constitution and those who want to see it dead (or perhaps well-done, with a nice pinot).” Slate‘s inimitable Dahlia Lithwick explains the Kennedy-Scalia sniping undergirding the Supreme Court’s very welcome 5-4 decision to ban juvenile executions. To keep things in perspective, the only other nations besides us that have put juveniles to death since 2000 are China, Iran, Pakistan, and the Congo…not exactly what you’d call the Axis of Freedom.