Follow Up to Yesterday's Gitmo Case: Lyle Denniston at SCOTUSblog reports, and provides a link to Judge Roberston's written opinion explaining yesterday's refusal to delay Salim Hamdan's trial. According to Denniston, the memorandum opinion closely follows the oral announcement Judge Robertson made yesterday. For example, Judge Robertson was persuaded by the fact that to create the Military Commissions Act of 2006 (MCA), the two other branches of government had worked together, “Where both Congress and the President have expressly decided when Article III review is to occur, the courts should be wary of disturbing their judgment.” Robertson also found it significant that the MCA created a new three-layer system of court review of any convictions that resulted. In the earlier system, he noted, final power to review any conviction rested only with the President or Defense Secretary. Denniston also reports that the opinion stated "Hamdan’s challenge to the military commission was 'an issue' removed from the underlying question of detention, the 'historical core' of habeas."

Using State Constitutional Rights to Infer Federal Constitutional Rights: Over the past few days Orin Kerr and Eugene Volokh have been blogging about whether state constitutional rights should be relevant to whether there is an analogous federal constitutional right. Kerr's response to Volokh today provides links to their discussion. Kerr's post today is particularly interesting for its discussion of how inferring federal constitutional rights from the constitutional rights of the individual states "has troubling implications for federalism." Kerr notes that such a practice would reduce the diversity among states, something that has occurred "in the Eighth Amendment setting" but because of the word "unusual" occurs with less frequency. Yesterday, Volokh argued that "if courts look to traditional recognition of a right as evidence that the right should be further constitutionalized, it seems to me that recognition in state constitutions should be an especially influential form of recognition." Heller and Kennedy v. Louisiana, both looked at what the states had recognized to determine a federal constitutional right. Based on these decisions, the current Court appears to be more in line with Volokh's view than Kerr's.