Man Without Qualities

Friday, January 09, 2004

Hamdi Cert

Why is it so hard for the New York Times to grasp Supreme Court procedure? The paper, often in the form of the absurdly eccentric Linda Greenhouse, often purports to read portentous meaning into such banal - and quite meaningless - Court actions as its discretionary decisions not to hear a particular appeal.

But today is different. Today the Times presents an absurdly eccentric effort by David Stout to construe a Court decision to accept an appeal by Yaser Esam Hamdi as a slap at the Administration generally - and a personal slap at some of its key officers. Specifically, the Times reports:

The Supreme Court stepped squarely into a momentous debate over national security and personal liberty today by agreeing to consider the case of a man who has been held without charges by the United States military since he was captured in the fighting in Afghanistan.

The justices agreed to hear the appeal of the captive, Yaser Esam Hamdi, who is believed to hold both American and Saudi citizenship and who is in a Navy brig in Charleston, S.C.

The Bush administration had urged the Supreme Court not to hear the Hamdi case, so the announcement today represented a sharp rebuff to the president, Attorney General John Ashcroft and other architects of administration policy.

To begin with, a vote of only four Justices by the Court is needed to accept an appeal - not a majority. Sometimes the Court indicates the vote, sometimes not. There is no indication in the Times article what the vote in this case might have been. How can a decision of a minority of the Court's Justices be construed as a slap at anyone? But even if every single Justice voted to hear this appeal - the Court's decision could still not properly be construed as a slap at anyone or anything.

Further, the Court almost never indicates which way it intends to decide a case at the time the case is accepted for review - and this decision is no exception. The Times article actually implies that because the Federal Government prevailed in the Circuit Court and requested that the Supreme Court not review the case, that the Court's decision to review the case is a slap at the Administration.

But no party in litigation who has prevailed at any stage in that litigation almost ever wants that winning decision reviewed on appeal. Do the Times and Mr. Stout think that the Justice Department has nothing better to do than to seek review of decisions with which they agree? What prevailing party in its right mind does such a thing? Does the Times appeal decisions it has won? Of course the Justice Department didn't want the decision reviewed by the Court - but that says nothing more than that the Justice Department prevailed at the Circuit Court level.

The Times seems to be confusing the circumstances of this case with another Court pattern: The Court generally (but by no means always) does grant review of cases which the Administration requests the Court to review. So if the Administration had requested the Court to review this case and the Court had refused, that would have been at least unusual - if not been particularly meaningful.

Worse, the Times makes the amazingly obtuse assertion that the mere grant of review represented a sharp rebuff to the president, Attorney General John Ashcroft and other architects of administration policy. There is not one shred of evidence in this case or in the Times article or in common Court practice or otherwise supporting the suggestion that the Court - or even the possible minority of Justices on the Court voting to review - intended any such personal rebuke to any of those individuals.

The United States Supreme Court generally grants review of a case if at least four Justices think there are important issues in it which merit Court attention. That's all that can be read into this decision at this point.

Of course, one might read meaning into the Times decision to run such an obvioulsy errant report.

UPDATE: The New York Times may be attempting some damage control. An entirely new article on this case by Linda Greenhouse, a new article that covers almost exactly the same ground and therefore should have been unnecessary, appears today - but with a completely different spin:

It is clearly too soon to say whether by accepting these cases the court was sending a signal about their ultimate resolution. Though the administration's critics were quick to read favorable tea leaves in the latest development, it is equally plausible to assume that justices across the ideological spectrum simply concluded that the cases raised issues of historic dimension meriting the court's consideration.

In this case Ms. Greenhouse is utterly correct. However, the true extent of the bizarre reasoning and gross error contained in the prior, Stout, article is not disclosed or admitted. Is this how the Times covers up?

Calling Mr. Okrent!

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