JURIST Guest Columnist Stephen Vladeck
of the University of Miami School of Law says that the US government's move to charge alleged "dirty bomber" Jose Padilla and potentially moot his pending appeal to the US Supreme Court against his status as uncharged enemy combatant may leave intact the problematic Fourth Circuit ruling broadly endorsing the President’s authority to indefinitely detain US citizens - unless of course, the Court, perhaps invoking the jurisprudence of late Chief Justice William Rehnquist, decides that the charge does not necessarily moot the case...
,259 days later, Jose Padilla is “free.” Okay, not “free” in the literal sense of the word, but free to exercise the typical panoply of constitutional rights afforded to defendants in the American criminal justice system. Such is the world we find ourselves in the day after a criminal indictment filed against Padilla here in Miami was unsealed, and a Presidential Order transferring Padilla to the “civilian” custody of the Department of Justice was made public.
For all those who argued, all along, that the proper course of action in Padilla’s case was to either charge him with a crime or release him (like, say, the U.S. Court of Appeals for the Second Circuit), this week’s developments should be acknowledged for what they are: Victory. With its opposition to certiorari
due next Monday, the Administration’s attempt to moot the Supreme Court’s near-guaranteed review of the Fourth Circuit’s September opinion endorsing President Bush’s authority to detain Padilla is hardly surprising, given that the Administration can count votes as well as (and, probably, better than) the rest of us. And if they don’t even have Justice Scalia . . . .
But we can’t lose sight of the big picture here. An American citizen was detained for three and a half years — for one-thousand, two-hundred, and fifty-nine days — as an “enemy combatant,” even though now, the stated basis for doing so does not form any part of the criminal charges against him. As a new strategy in difficult criminal cases — detain the suspect without charge until the opposition to certiorari is due in the U.S. Supreme Court, then transfer and charge him — the government’s position is simply brilliant. It may not even raise Speedy Trial Act issues, since the general rule under the Act is to count time from when the defendant was “arrested or served with a summons in connection with [the criminal] charges.”
As a “heads I win, tails you lose” approach to constitutional litigation, however, this kind of forum-shopping should make even the staunchest defenders of the substantive policies behind the case uneasy. Assuming that the government’s response to certiorari
will argue that the case is now moot, and should therefore not be granted (a position that may be irreconcilable with the fact that, notwithstanding his transfer to civilian custody, Padilla has not been “un-designated” as an “enemy combatant”), there is a serious danger that the Fourth Circuit’s broad endorsement of the President’s authority to detain citizens like Padilla will remain on the books, and the obvious allusion to Justice Jackson’s famous dissent in Korematsu
The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.... A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution.
Here, of course, the danger is not that the Court will “review and approve” such a potentially dangerous precedent, but that, because of the mootness concerns, it will find itself unable to consider the controversial constitutional issues, and therefore approve the Fourth Circuit’s ratio decidendi
simply by leaving it intact. In that context, is the danger any less significant?
The idealistic answer is “of course,” because the Court has long recognized its authority, when the prevailing party below voluntarily moots an appeal, to grant certiorari, vacate the judgment below, and remand with instructions to dismiss. The so-called “Munsingwear” doctrine, named after the 1950 case from which it derives, was most recently discussed in depth in 1995, where the Court reaffirmed its utility in cases like Padilla’s (albeit while rejecting its application to different facts there). But, quietly, a number of Court veterans have suggested that a “Munsingwear” order is hardly automatic, and that the Court may just as easily deny certiorari
in Padilla’s case, leaving the Fourth Circuit opinion intact. Whatever dangers this approach would have for historical purposes, the peril it would create for Padilla’s criminal case would be legion, since collateral estoppel might well bar relitigation of issues “settled” by the Fourth Circuit’s efforts, e.g., the lawfulness of Padilla’s pre-indictment detention.
Which brings me, quasi-full-circle, to the one-time Jackson clerk, Chief Justice Rehnquist. Unlike many of my colleagues, I had thought, from early on in the Padilla
litigation, that the former Chief Justice might not be such a sure vote for the government’s position on the merits. After all, as much as Rehnquist was a well-known defender of executive power, he was equally well known for his vigorous defenses of judicial independence, if not judicial supremacy, in cases such as Dickerson. One small sign that Rehnquist might have had concerns about the limitlessness of the government’s position on the merits in Padilla
is the Hamdi
case, where, rather than join Justice Thomas’s dissent arguing for broad deference to the President, he joined Justice O’Connor’s plurality opinion affirming the government’s authority on the narrowest grounds available, and taking pains to distinguish the battlefield-specific facts of that case.
More important than Rehnquist’s ultimate position on the merits of Padilla
, however, which I would not dare presume to predict, is what his position might have been on the mootness question. For that, there’s much to learn from an otherwise seldom-invoked concurrence he wrote in 1988. In Honig v. Doe
, a case concerning claims that the San Francisco Unified School District had violated the Education of the Handicapped Act, Rehnquist joined a 7-2 majority both on the merits and in holding that the case was not moot, even though all but one of the suing students had reached the age of 21 by the time the case was argued in the Supreme Court, the age at which the Act’s protections terminate. (And the one student left in the case was, it appears, no longer subject to the alleged violations of the Act.)
Responding to a strong dissent by Justice Scalia, which Justice O’Connor joined, Rehnquist concurred separately to emphasize that, in his view, the Court’s mootness doctrine was not required by Article III. Although Rehnquist’s opinion was limited to cases “where the events giving rise to the claim of mootness have occurred after our decision to grant certiorari
or to note probable jurisdiction,” he was unequivocal in his view that, in those circumstances, mootness could give way to compelling policy reasons for hearing the case:
The logical conclusion to be drawn from...the historical development of the principle of mootness, is that while an unwillingness to decide moot cases may be connected to the case or controversy requirement of Art. III, it is an attenuated connection that may be overridden where there are strong reasons to override it. The “capable of repetition, yet evading review” exception is an example. So too is our refusal to dismiss as moot those cases in which the defendant voluntarily ceases, at some advanced stage of the appellate proceedings, whatever activity prompted the plaintiff to seek [relief].
Whether the sixteenth Chief Justice would have been likely to extend his Honig
concurrence to Padilla
is, of course, impossible to know. But for a Chief Justice who so strongly believed in the independence of the judiciary and in the power (sometimes, the obligation) of the courts to decide even those cases it traditionally held itself without power to hear, and for a former law clerk to the Justice who so famously denounced the “loaded weapon” in Korematsu
, the Administration’s attempt to voluntary moot the most important individual liberty case of our time, for the transparently obvious (and ignoble) reason of avoiding the Supreme Court’s review, might not have gone over very well at all.
Also by Stephen Vladeck:
Stephen Vladeck is a professor at the University of Miami School of Law. He has been involved in the
Padilla litigation at various stages, and helped to draft several amicus briefs before the US Second Circuit and the US Supreme Court in