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It happens from time to time, but my initial post on Kennedy v. Louisiana was wrong. I disagree with the decision. That said, I think it’s a plausible decision – and it certainly doesn’t justify the hyperventilating cries of illegitimacy from conservatives that seem to accompany every decision that they disagree with (more on that in my next post).

But it’s a bad opinion. It’s not merely that the methodology is shaky. Even assuming you accept the methodology, the Court’s result doesn’t seem consistent with that methodology.

To back up, constitutional law decisions always have two key parts: (1) the result; and (2) the reasoning (i.e., the methodology or doctrine or framework). For instance, imagine the Supreme Court said (a) Gitmo detainees have habeas rights; (b) because Publius says they do and he’s infallible. That’s the correct result, but the reasoning is a wee shaky. More to the point, the methodology adopted will lead to bad things, even if we like the result it produced in this particular case.

It’s easy to lose sight of it in political debates, but constitutional law is often a battle of competing methodologies. And if you want to be cynical, certain Justices favor certain methodologies because they generally produce results they like. Originalist methodology, for instance, was heavily motivated by hostility to the Warren Court. True, originalism sometimes produces results conservatives don’t like, but those are the operating costs of adopting politically favorable methodologies.

So with the result/reasoning distinction in mind, we can better understand the problem with Kennedy. It’s not only that the methodology itself has some serious problems. It’s that the methodology suggests a different result. It gets a bit denser below the fold.

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Marc Ambinder has been spending a lot of time lately defending John McCain. But this post on habeas was too much. Ambinder claims that “on the question of what should be done to the Gitmo detainees, the candidates’ rhetorical differences are greater than their policy differences.” That’s wrong. Really really wrong.

First, and before I get to policy differences, the larger problem is that Ambinder is ignoring the fact that political rhetoric matters. McCain has adopted the worst sort of demagoguery on the habeas case. He claimed the decision was one of the worst in history. He also referred to writs of habeas corpus — one of the oldest civil liberty protections in Anglo-American law — as “so-called, quote, Habeas Corpus suits.”

In doing so, McCain is providing support for the political movement to deny the detainees all legal rights. It doesn’t matter what he privately thinks or what he said years ago. Today, when it matters, he’s siding with the “no rights” crowd — and his actions have consequences. (And for the record, the point of protecting those rights is not to release terrorists but — say it with me people — to determine if these people are terrorists in the first place).

But that aside, Ambinder’s also off on the policy. It’s frustrating to even have to say this, but McCain and Obama have major policy differences on the Gitmo detainees.

First, Ambinder claims the McCain’s gripe is procedural rather than constitutional. That distinction, however, doesn’t make much sense. He writes:

[McCain’s] concern now [] is procedural, rather than constitutional: the detainees’ having access to habeas in our federal courts would create a tangled web of lawsuits, would expose intelligence secrets, and would needlessly draw out these legal proceedings.

Ugh, where to start. It’s true that there’s a difference between rights and remedies. It’s also true that habeas is a procedural remedy to vindicate a pre-existing right (e.g., due process). The problem, though, with Ambinder’s statement is that this particular procedural remedy (habeas) also happens to be a guaranteed constitutional right. Indeed, its purpose is to prevent precisely what Bush is doing. Thus, McCain’s problem with “procedure” is necessarily a constitutional problem. And the fact that constitutional rights are messy is, you know, the point. I mean, I guess the Fourth Amendment would be ok and all if didn’t make police do messy things like get warrants. It just really drags out the process needlessly.

Things get worse in the next part though:

McCain believes that it’s OK for foreign-national detainees to have habeas corpus rights, even if they are somewhat restricted[.]

No he doesn’t. I mean, he may say that. He may even think that. But he’s acted in a completely different way.

Rights don’t exist if you eliminate all procedures to vindicate those rights. Otherwise, the rights become only words on paper, rather than living breathing liberties that must necessarily be enforced.

In short, actions speak louder than words. And in the world of action, McCain has been a consistent opponent of habeas. In fact, he’s consistently voted to completely strip ALL habeas protections from the Gitmo detainees. For instance, he has (1) supported the DTA; (2) supported the MCA; and (3) filibustered a bill to restore the habeas rights eliminated by the prior two laws. Collectively, these votes completely eliminated habeas remedies and replaced them with kangaroo courts. Maybe Ambinder could take a stab at squaring these actions with McCain’s words and press releases.

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Boumediene deserves about a dozen posts, but here’s my initial take — the opinion is legal realism made flesh. Legal text and doctrine didn’t determine the Justices’ votes today— outside considerations of policy and politics did. And as I’ll explain, that’s not necessarily a bad thing (indeed, it was probably unavoidable).

[As a disclaimer, I’m assuming some basic knowledge of the opinion. If you want a summary, check out Hilzoy’s fine post or the invaluable ScotusBlog.]

To me, the most interesting question — and the crux of the whole decision — was the sufficiency of D.C. Circuit’s ability to review the Combatant Status Review Tribunals (i.e., the “courts” that determine if you’re an “enemy combatant”). Because Roberts’ dissent focuses on this issue in detail, he comes closest to obliterating the majority’s logical foundation.

To back up, there are really two separate procedures at issue here. The first is the CSRTs themselves that make the initial enemy combatant classification (they are not Article III courts). The second is the appellate review of those classifications. Regarding the latter, Congress (in the DTA and MCA) provided for a limited appellate review of the CSRTs by the illustrious D.C. Circuit alone. By law, the court can only determine (1) whether the CSRTs followed the President’s designated standards and procedures, and (2) whether “the use of such standards . . . is consistent with the Constitution and laws of the United States.”

That last part is crucial. If the D.C. Circuit review provides sufficient protections, then it’s a valid “substitute” for habeas. (Habeas, after all, is just a procedure to vindicate other rights). If it’s not, then Congress has unconstitutionally “suspended” habeas corpus.

And on this question, Roberts’ argument seems pretty persuasive at first glance. He explains that if there are constitutional problems with the CSRT procedures, then the D.C. Circuit gets the first crack at them. What’s more, the D.C. Circuit by the very terms of the statute is free to reach the same conclusion that the Court did. There’s nothing, Roberts says, that the Court held today that the D.C. Circuit couldn’t have held. Thus, the Court is jumping the gun, throwing out a statute before the D.C. Circuit has considered any procedural challenges.

To repeat, the million dollar question is whether the D.C. Circuit could provide any relief that the detainees would be constitutionally entitled to.

The Court ultimately answered “no” — i.e., it held that the D.C. Circuit’s constitutional review was unconstitutionally narrow. That conclusion, however, seems hard to square with the language of the statute. As Roberts explained, the D.C. Circuit was explicitly authorized to review the constitutionality of the procedures.

On a purely abstract level, I think Roberts gets the best of this argument. But that said, I still think he was ultimately wrong, largely because of real-world considerations.

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I’ve now had a chance to dig into last week’s Supreme Court opinions — CBOCs v. Humphries and Gomez-Perez v. Potter (pdfs). Both cases extended civil rights protections to claims of retaliation (I’ll explain below). What’s most interesting about the opinions is that they illustrate why Roberts and Alito are quite different from the more reactionary Scalia/Thomas wing. In fact, I think these opinions suggest that Roe v. Wade may (MAY) be safer than it appears, even under a McCain presidency.

First, some exceedingly brief background. The cases above involved two civil rights statutes — Section 1981 prohibits a certain type of racial discrimination, while the ADEA prohibits age discrimination. The precise question was whether these two statutes cover retaliation for complaining about these forms of discrimination.

For instance, if your boss says, “I’m firing you because you’re too old,” that’s clear discrimination. But let’s assume the boss had fired someone else for that same reason. And let’s say that, in response, you complained to other managers about it and they fired you for your efforts (i.e., they retaliated). In that scenario, have you been “discriminated” against “on the basis of age”?

That’s what the Court had to decide — How broadly should the statutes be construed? The upshot is that construing the text broadly would make it easier to bring discrimination claims. Construing it more narrowly, by contrast, would make it harder.

In both cases, the Court found that the statutes covered retaliation — so it was a win for the forces of good. But the alignment was interesting. The race case was 7-2, with Roberts and Alito joining the liberals. The age case was 6-3, because the majority lost Roberts (but Roberts’ dissent is still quite different from the Thomas/Scalia one).

To be grossly general for the sake of the non-lawyers, the two cases pitted textualism versus stare decisis (i.e., respect for precedent).* The textual basis for retaliation claims is fairly shaky. There are plausible readings that get you there, but it’s a very close call. There are, however, several prior cases that extend these protections to retaliation claims. The dilemma for Roberts and Alito is that they were being asked to uphold prior decisions they presumably disagreed with, ideologically speaking.

But they upheld them anyway — in doing so, they were “acting against interest.” It would have been very easy for Alito and Roberts to say “no text, no claim.” But instead, they endorsed these prior cases, warts and all (warts from a conservative perspective, that is).

Indeed, Alito endorsed this precedent in both cases. And while Roberts dissented in the age case, his dissent was rooted in the unique textual structure of that individual statute (frankly, I think he was probably right). Notably, he did not go along with Scalia and Thomas who claimed that “discrimination” never encompasses retaliation.

I think we can take a few tentative lessons from these opinions. To be sure, I don’t want to read too much into one day’s worth of decisions. These may well be outliers. But disclaimer aside, here goes:

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