It's Still Not Painless

Something that a great many attorneys (let alone journalists) forget is that many, and perhaps even most, of the major "liberal" decisions from the Supreme Court in the last half century have only enabled litigants to have a losing day in court. As a recent example, consider Jenkins v. Heintz, a major consumer protection case from the 1990s that held that an attorney could indeed be treated as a "bill collector" under the Fair Debt Collection Practices Act; the attorney's status as an attorney did not create immunity. If one looks at the post-Supreme Court history, one will find that the consumer eventually lost the claim, and indeed the entire case. Consider that issue in the Gitmo context for a moment.

Regarding Gitmo, the Perfesser opines that:

My bet, by the way, is that the Court will rule that US courts have jurisdiction. And then we'll get some left-liberal judge (probably on the 9th Circuit) deciding to let the terrorists go.

As I've remarked before, the "suicide pact" aphorism doesn't mean what many commentators would have it mean.

[Kennedy v.] Mendoza-Martinez[, 372 U.S. 144, 160 (1963)] is a draft-dodging case—at least, on its face. The defendant was a naturalized US citizen who evaded the draft in 1942 by going to Mexico until 1946 (according to the colloquy in his guilty plea). After his conviction, the government stripped him of his citizenship and deported him. The case is really about the concept of estoppel—that is, one cannot argue against the result in a prior case that went against one, so long as the issue was (or could have been) fully and fairly tried in the prior case. Yes, that's a mouthful. Consider it in the context of a teenager trying to borrow the car. If the teenager asks Mom to borrow the car, and she says "No," the principle of estoppel would prevent said teenager from walking into the next room and asking Dad to borrow the car. He would be estopped from arguing against the result when he asked his mother (assuming, of course, that Mom and Dad have equal authority over the car). But what if he wanted to use the car to go take a college admissions test, and his mother just said "no" without listening to the substance of the request? Wouldn't that justify asking Dad to consider it anew? Probably not, because he could have at least gotten his reasons before Mom for her to reconsider her decision. Mendoza-Martinez is not really about civil liberties, but about civil procedure. Citing this language in support of deprivation of civil liberties is at a minimum removing it from context. (And the context in which Justice Jackson was using it—another case turning on civil procedure, not civil liberties.)

Post of 18 December 2003.

I find the assumptions underlying the Perfesser's concluding paragraph rather more disturbing. Leaving aside the merits of the "suicide pact" argument for the moment, what does that paragraph imply? First, that the individuals in detention are all terrorists, which seems to me disproven by the release of several UK citizens in the last few weeks. Second, that if the cases are heard in front of US courts, they cannot be proven at the preponderence-of-the-evidence level. Remember, these are the equivalent of habeas corpus petitions: All that the government need do is show probable cause for detention. We can worry later about meeting the reasonable-doubt standard required during an actual trial; presumably, a fair number of cases will be plea-bargained away in return for cooperation or dropped entirely, so we don't even know whom to try yet (assuming a positive answer to the first concern). Third, and perhaps most disturbingly, the Perfesser implies that left-liberal judges will allow their doctrinal preferences to overcome the evidence presented. I could make the same presumption about right-conservative judges and consumer-protection or civil rights lawsuits… except that I've never seen that in practice (not for lack of opportunity). There are enough levels of judicial review that the chance of getting a "liberal" district judge, probably after a hearing in front of a "liberal" magistrate judge, reviewed by a "liberal" Court of Appeals panel, followed by either a denial of certiorari by the Supreme Court or "liberal-dominated" decision there, is vanishingly small—and the chance of all of them allowing doctrine to overrule evidence is even smaller. Anyone who wants to pretend that one "political predisposition" is less or more likely than any other to impose its doctrinal preferences on cases before it has the burden of coming up with some evidence to that effect.

Evidence. The presentation thereof. I thought that's what this whole process is supposed to lead to, for everyone involved. My bet is that the Supreme Court will, by a plurality, find that there is indeed jurisdiction in Padilla and Hamdi, but that the government will either decline to press matters and release them pending trial (citing "national security concerns" that "prevent" it from presenting evidence—some of which may be valid, but some of which will not) or win at the hearing by proving probable cause.