Changes

The D.C. Circuit, led by Judge Randolph and joined by Judge Sentelle, found no application of the Sovereign Clause to aliens held outside of the United States.  Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. Feb. 20, 2007).  The Court held that the Sovereign Clause was not an obstacle to the traditional power of Congress to limit court jurisdiction, and they dismissed the lawsuit.  Clinton-appointed Judge Rogers dissented at length, which the panel majority rejected as being “filled with holes.”

The D.C. Circuit, led by Judge Randolph and joined by Judge Sentelle, found no application of the Sovereign Clause to aliens held outside of the United States.  Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. Feb. 20, 2007).  The Court held that the Sovereign Clause was not an obstacle to the traditional power of Congress to limit court jurisdiction, and they dismissed the lawsuit.  Clinton-appointed Judge Rogers dissented at length, which the panel majority rejected as being “filled with holes.”

On its third trip to the U.S. Supreme Court, the detainees had every reason to expect yet another intervention in their favor.  But on April 2nd, the Court denied certiorari (petition for appeal) in a remarkable three-way opinion.  Four Justices (Roberts, Scalia, Thomas and Alito) opposed considering the case, two Justices (Stevens and Kennedy) stated that they would not hear the case now because the detainees had not exhausted all other avenues, and the remaining three Justices (Breyer, Souter and Ginsburg) wanted to hear the case.  It takes four votes for there to be a grant of certiorari; the detainees fell one vote short.

On its third trip to the U.S. Supreme Court, the detainees had every reason to expect yet another intervention in their favor.  But on April 2, the Court denied certiorari (petition for appeal) in a remarkable three-way opinion.  Four Justices (Roberts, Scalia, Thomas and Alito) opposed considering the case, two Justices (Stevens and Kennedy) stated that they would not hear the case now because the detainees had not exhausted all other avenues, and the remaining three Justices (Breyer, Souter and Ginsburg) wanted to hear the case.  It takes four votes for there to be a grant of certiorari; the detainees fell one vote short.

The result is a victory for the advocates of limiting jurisdiction of the courts, as Congress succeeded in withdrawing jurisdiction over this highly contentious issue.

The result is a victory for the advocates of limiting jurisdiction of the courts, as Congress succeeded in withdrawing jurisdiction over this highly contentious issue.