Posted 12:28 PM by Robert

Hamdi Cert II

Does the Supreme Court's acceptance of an appeal in which a party argues that the Court has no jurisdiction constitute a decision by the Court that it does have jurisdiction?

Of course not. Arguably the most famous and influential decision of the Court was Marbury v. Madison, which held that the Court did not have jurisdiction over that case - and that's only by way of example.

Nevertheless, there seem to be people who insist on reading such significance into the Court's recent decision to hear the Hamdi appeal. These are people apparently confused by the Administration's argument on national security grounds that the federal courts have little if any jurisdiction over that case.

The 4th Circuit (in which the Administration prevailed) did not render its decision on "non-reviewability" or jurisdictional grounds, and certainly didn't hold that it had no jurisdiction to hear the appeal. In fact, the Administration made two arguments in the alternative, one argument based on "non-reviewability" principles and the other on principles of court deference to the political branches. The Administration prevailed in the 4th Cir. on the deference argument - and it is that decision the Administration is defending in the Supreme Court. The 4th Cir held that it didn't need to get into the bigger "non-reviewability" issues at all because they were "premature." Did the 4th Cir. "rebuke" the Administration even though it prevailed? I don't think so.

Here's a link to the 4th Cir. opinion and here's a relevant passage:

The government urges us not only to reverse and remand the June 11 order, but in the alternative to reach further and dismiss the instant petition in its entirety. In its brief before this court, the government asserts that "given the constitutionally limited role of the courts in reviewing military decisions, courts may not second-guess the military's determination that an individual is an enemy combatant and should be detained as such."
The government thus submits that we may not review at all its designation of an American citizen as an enemy combatant -- that its determinations on this score are the first and final word.

Any dismissal of the petition at this point would be as premature as the district court's June 11 order. In dismissing, we ourselves would be summarily embracing a sweeping proposition -- namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so.

Given the interlocutory nature of this appeal, a remand rather than an outright dismissal is appropriate.

If dismissal is thus not appropriate, deference to the political branches certainly is.

On a related matter: This just in. The Court has declined to review the Administration's secrecy surrounding 9/11 detainees.

This time Stout and others, such as the AP, report that the Court's decision handed the Administration a substantial "victory" - which, of course, is true because it's always a victory to any prevailing party when the higher court declines review. It simply means the prevailing party in the lower court has actually prevailed. That's a "victory."

But it doesn't mean the higher court agrees with the lower court or has an opinion on the substance of the case. The Supreme Court routinely hands "victories" to prevailing parties by declining review of cases in which every single Justice believes the lower court from which the appeal is taken was completely wrong. Such a decision certainly doesn't mean that the Court meant to issued a stern rebuke to the Administration's opponents in this case - or has endorsed Administration policy! Linda Greenhouse implies that kind of thing routinely when it suits her politics, but I don't think she'll be going there today.

Returning to Hamdi: The Court's decision to hear the Hamdi appeal doesn't mean that the Court has decided it has jurisdiction of any particular scope (it's a commonplace that a court always has jurisdiction to determine its own jurisdiction, for example). And its decision to hear the case certainly doesn't mean that the Court meant to issue a rebuke to the Administration - still less to any particular individual in the Administration - or has signaled that it disapproves of any Administration policy.

That's all so clear that Linda Greenhouse wrote her correcting article. But, amazingly, there are people who think the Stout and Greenhouse articles are not inconsistent.

UPDATE: Linda Greenhouse scribes her own article on the Court's decision not to hear the appeal of the Court of Appeals for the District of Columbia decision allowing the Administration to not disclose all those names. But, as expected here, she makes no suggestion that the Court endorses the appealed decision or the Administration's policies - there is not even an ambiguous reference to an Administration "victory:"

Even though the justices gave no reason for declining to take the appeal, the development was undoubtedly a welcome one for the administration after several recent judicial setbacks.

That's all quite correct, if a little subdued.

See, Ms. Greenhouse can get it right when the stars, the Justices and her political biases all align! Now if only she could consistently get this kind of thing right when she doesn't like the result of getting it right.