Justices Won't Rule on Padilla Detention
In an interesting exercise of judicial restraint, the Supreme Court announced this morning that an appeal from Jose Padilla - the American citizen held for more than three years in a Navy brig as an 'enemy combatant' before being charged last fall - was now moot considering his current legal status.
Justices Thomas, Alito, and Scalia made no comment on the ruling, while Justice Kennedy took the rather uncommon step of writing an opinion [PDF] explaining his vote. Kennedy's concurrence was joined by Chief Justice Roberts and Justice Stevens. Kennedy writes that a denial of cert is "a proper exercise of [the Court's] discretion in light of the circumstances of this case," before providing a detailed legal history of the Padilla case. Kennedy continues by noting the arguments made by the Administration for mootness (that Padilla got the what he requested by being charged with a crime) and by Padilla's legal team (that "there remains a possibility that he will be redesignated and redetained as an enemy combatant").
The main point of Kennedy's opinion is that a decision by the Court on the legality of Padilla's detention would be, at this point, hypothetical (since currently he is being held under civilian authority). "In light of the previous changes in his custody status," Kennedy writes, "and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again. That concern, however, can be addressed if necessity arises." He notes that the federal district court now in charge of Padilla's case "will be obliged to afford him the protection, including the right to a speedy trial, guaranteed to all federal criminal defendants." If Padilla's status were to be changed, Kennedy continues, the courts would then be able to rule on the underlying issues at that time.
Concluding, Kennedy adds "That Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical."
Justices Ginsburg, Breyer and Souter voted to grant Padilla's appeal; in an opinion [PDF], Ginsburg writes that because the Administration has not retracted its claim of the power to designate enemy combatants, the case is not moot and should have been heard.
While I agree that the fundamental issues in question here need to be addressed, I have to agree with Justice Kennedy that a hypothetical decision on such an important issue isn't a good idea. Should Padilla's status change again, or should another person be designated an enemy combatant and held without charges, I would fully expect the case to again work its way to the Court and eventually reach a conclusion. But as Kennedy writes, it should be a case where a decision would make a practical difference. Will the Administration continue to play a legal shell-game, designating and redesignating just to avoid a judicial determination on this question? It's possible, but I think if that game is attempted the patience of the justices will be found to wear thin rather quickly indeed.