Padilla and the Supremes

I don’t have a whole lot to add to the Supreme Court’s denial of cert in the Padilla case that if you’re interested you haven’t read elsewhere. It’s certainly quite outrageous that the administration’s attempts to avoid scrutiny–so transparent even Federalist Society idol Michael Luttig saw through them–have succeeded. And certainly, as Ginsburg noted in her dissent, the denial of cert was purely discretionary (as opposed to a case where it is required because there is not an ongoing “case or controversy” necessary for the Court to have jurisdiction under Article III: cases where “the capable-of-repetition exception to mootness applies where ‘(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again’,” and there’s no serious question that these exceptions apply to this case. What makes the denial particularly interesting (especially looking forward) is that Stevens failed to provide the fourth vote, which strongly suggests strategic voting. Marty Lederman is cautious in his assessment:

In Padilla, evidently Justice Kennedy was not prepared to give either side of the Court the necessary assurance of his views on the merits; this might explain, for example, Justice Stevens’s decision not to provide the fourth vote for certiorari (although it’s certainly possible that Justice Stevens simply agrees with Justice Kennedy that consideration of the merits would be premature).

The vote pattern does suggest uncertainty about Kennedy’s vote; it may also reflect ambivalence on the part of Scalia. Iocaste thinks the liberals foresaw a loss on the merits, and fears for the future:

The Court was ducking the case. But the question is, why did it duck?

Here’s what I’d actually lay money on: The liberals — all four of them — feared that they would lose on the merits. And thus, even though all four wanted to hear the case, all four could not risk voting to grant cert. So instead, they deliberately arranged for one — Stevens, apparently — to vote to deny, so that they could at least write a three-person opinion dissenting from the denial.

As for the conservatives, that’s a lot more difficult to read. Perhaps for them, it was simply a case where they didn’t need to get into the thorny issues. The Fourth Circuit upheld Padilla’s detention; that’s precedent, and it stands if the Court doesn’t hear the case. Meanwhile, Padilla is being tried. Thus, the conservatives did not feel any urgency to step in, not the same way the liberals would have.

So, for me, the scary part — aside from the fact that this decision leaves the Fourth Circuit’s original decision to uphold detention intact — is this: The four liberals believed that Kennedy was likely to vote in favor of detention.

And if that’s the way Kennedy is leaning in this case, involving an American citizen imprisoned on American soil, I’m terrified to think what Kennedy may be thinking about the other issues coming down the pike.

I can’t say I don’t share significant amounts of this pessimism.