Thursday, June 12, 2008

SCOTUS Roundup

Two big decisions today by the court.

First in the case Boumediene v. Bush (2008), the court in a 5-4 decision granted foreign terrorist suspects held at Guantanamo Bay the right to challenge their confinement (habeas corpus) in federal courts. This is in keeping with three previous decisions (which we discuss in 3150) in the Hamdi, Hamdan and Rasul cases.

On the one hand, the decision wasn't that surprising, but the forceful opinions issued showed the court was deeply divided. While the dissent warned that "the nation will live to regret what the court has done today,” the majority asserted “the laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

If you look at this case along with the cases from 2004 and 2006 above, the court seems to be saying it doesn't matter what you call these detainees ("enemy combatants," "terrorists,") or whether we hold them in island prisons, in secret prisons overseas, or in outer space, they must have access to the our courts. Period. It's also likely to throw a wrench into the current military tribunal trials underway in Guantanamo.

In another decision, Irizarry v. U.S. (2008) the court ruled again 5-4 that judges do not have to give notice to either defendants or prosecutors when they are going to deviate from sentencing guideline recommendations (see also: the Kimbrough decision from this past December). This decision seems in keeping with the spirit of Kimbrough, but the alliances produced in the opinions amongst the justices is intriguing.

It's that time of year, folks. Be prepared for a flurry of decisions between now and the end of the month as the court completes its term and adjourns for the summer.

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