June 28, 2004

INTERESTING STUFF on the Padilla and Hamdi cases, over at Volokh. This bit is interesting: “Scalia’s dissent in Hamdi v. Rumsfeld suggests he would be a fifth vote for the Padilla dissent’s position on the merits. He says that, unless the government suspends the writ of habeas corpus (which it has not done), the government must charge a citizen it is holding with a crime. It cannot detain a citizen without charging him.”

I agree. And this bit, also from Scalia, appears to be a bit of a slap at the Chief Justice: “Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.”

UPDATE: I just got out of a 90+ minute faculty meeting, but Eugene Volokh has further thoughts:

I’ve only read the Hamdi case so far, but here’s a tentative thought (subject to revision as I read the other cases and rethink the matter) — two significant facts in this case are that Justice Scalia voted against the government, and Justice Breyer voted (partly) in favor of the government.

This is because these votes may well change the political dynamics within the conservative and liberal movements.

I think that’s right. There’s more on the Supreme Court at The Volokh Conspiracy, so just scroll up and down. And Marty Lederman has thoughts, too, over at SCOTUSblog. So, in a very different vein, does Mark Levin.