Legal Commentary

Throughout Justice Kagan's confirmation process, a lot of virtual ink was spilled on the recusal issue, and the extent to which her prior service as Solicitor General would preclude her from participating in a not-insignificant percentage of the Court's docket. The consensus that seemed to emerge was that (1) these concerns were overblown; and (2) even if they weren't, recusal would be at most a short-term issue, and would not generally interfere with either the Court's workload or its ability to continue to play its assigned role within our legal system.

In at least one area, though, it seems that Justice Kagan's recusals may well be of massive, long-term significance: the continuing habeas litigation arising out of Guantanamo. At last count, there are currently eight different petitions for certiorari before the Court in Guantanamo cases, which between them raise a battery of issues going to (1) the power of the federal courts to effectuate the release of detainees who have prevailed in their habeas cases; (2) the power of the federal courts to provide notice and a hearing before a detainee is involuntarily transferred to their home country or somewhere else; and (3) the proper procedural, evidentiary, and substantive standards to govern disposition of the merits of these cases. And in light of yesterday's denial of rehearing en banc by the D.C. Circuit in Abdah v. Obama (over three dissents), it seems increasingly clear that there is no majority of active D.C. Circuit judges who wish to revisit what their court has already done in these areas.

The underlying question is whether, in its jurisprudence, the D.C. Circuit has actively subverted or otherwise undermined the Supreme Court's 2008 decision in Boumediene. My own view, as I've suggested before, is that it has, but I accept that I may be in the minority. What cannot be gainsaid, though, is that this is an important question, and one on which the Supreme Court's views might be rather helpful. So assume, for the sake of argument, that the D.C. Circuit has in fact misapplied or otherwise misread Boumediene. Then what?

Enter, Justice Kagan. So far as I understand, in each of the eight Guantanamo cases where any action by the Court has been necessary, such action has included a notation that she is recused. On the (potentially incorrect) assumption that she is recused from all matters Guantanamo, that creates a difficult math problem: Four of the current Justices clearly think that Boumediene was wrongly decided, given that they dissented in that case (and rather sharply, at that). As such, to whatever extent the D.C. Circuit is undermining Boumediene, they may well not object. There are at most four Justices on the other side, who both (1) think Boumediene was rightly decided; and (2) might conclude that a number of these D.C. Circuit decisions are misapplications thereof. And there would be no reason for those four to vote to grant certiorari if it were clear that there was no fifth vote on the merits.

What this means for practical purposes, is that until and unless one of the Boumediene dissenters is willing to even consider chastising the D.C. Circuit for refusing to follow a decision from which they themselves dissented, the D.C. Circuit will necessarily get to have the last word(s) in the Guantanamo habeas litigation. Perhaps Chief Justice Roberts will have his own Dickerson moment?