The latest outrage from the Roberts Court involves not something the Court did but what it didn't do. Today, the Court refused to hear appeals from seven people who have been detained without charges at Guantanamo Bay. In 2008, the Supreme Court formally posed as a defender of habeas corpus in Boumediene v. Bush, holding that the Military Commissions Act of 2006 violated rights to habeas corpus possessed by those detained at Gitmo. The rights declared in Boumediene, however, are meaningful only to the extent that the federal judiciary is willing to enforce them, and so far there has been no such willingness. The refusal of the Supreme Court to hear these cases, as the Center for Constitutional Rights notes, "leaves the fate of detainees in the hands of a hostile D.C. Circuit Court of Appeals, which has erected innumerable, unjustified legal obstacles that have made it practically impossible for a detainee to win a habeas case in the trial courts."
Decisions by the Supreme Court not to hear appeals do not involve public votes. (In rare cases, justices can publish dissents from decisions not to hear cases, but this was not done in this case.) Since it requires four votes to hear an appeal, however, we know that at least one of the Court's Democratic appointees voted not to hear the appeals. This could mean a number of things. The worst-case scenario is that one or both of President Obama's nominees do not take habeas corpus rights as seriously than the moderate Republican nominees (John Paul Stevens and David Souter, both part of the Boumediene majority) they replaced. It's also possible that one or all of the more liberal members of the Court didn't trust Anthony Kennedy to critically evaluate the standards established by the D.C. Circuit, and made the strategic calculation that not hearing the case was better than establishing a bad precedent. Either way, as of now Boumediene has essentially be reduced to an empty shell, holding out a promise of constitutional protections the federal judiciary has no intention of actually fulfilling.
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