As SCOTUSblog's Lyle Denniston reports, with its denial of certiorari in Noriega v.Pastrana
(09-35) the U.S. Supreme Court "refused... to clarify whether
individuals in custody by the U.S. government may rely on protections
of the Geneva Conventions for prisoners of war..." on the same day that
the Court summarily decided Briscoe v. Virginia. The
importance of the criminal law questions posed in both petitions raises
questions about why the U.S. Supreme Court schedules some cases for
oral argument and briefing, and declines to address others. The Court
may have declined to hear Noriega's case because, as Denniston reports,
denial of cert. could clear the way for Noriega's deportation to France
for trial on illegal drug charges, but denial leaves unanswered whether
Congress had taken away the right of anyone to pursue a habeas or other
civil claim under the Geneva Convention.
The Court's refusal to address important questions raised by Noriega's petition - like the extent to which provisions of the Military Commissions Act of 2006 affect the power to grant a writ of habeas corpus under 28 U.S.C. §2241 - raise a question as to what would have made the case cert-worthy.
The Court's refusal to address important questions raised by Noriega's petition - like the extent to which provisions of the Military Commissions Act of 2006 affect the power to grant a writ of habeas corpus under 28 U.S.C. §2241 - raise a question as to what would have made the case cert-worthy.
Justice Thomas, joined by Justice Scalia, believed that Noriega was cert-worthy because the Court's decision could "provide much-needed guidance on two important issues with which political branches and federal courts have struggled since we decided Boumediene." The first was the extent to which Section 5 of the Military Commissions Act of 2006 (MCA) affects 28 U.S.C. §2241, and the second is whether the Geneva Conventions are self-executing and judicially enforceable.
According to the dissenting Justices, Noriega's case could have been the prime opportunity for the Court to address whether Section 5(a) of the MCA is valid. Boumediene left this issue open, as it only invalidated Section 7's attempt to strip federal courts of habeas jurisdiction, and Noriega argued that the MCA could not eliminate the Geneva Conventions as a source of rights upon which habeas petitioners may rely. He alleged the MCA went against the broad jurisdiction conferred by 28 U.S.C. §2241 over a habeas action filed by any person who claims to be held "in custody in violation of the Constitution or laws or treaties of the United States." If the Court had taken up the Noriega petition it could have decided whether Congress had the power to narrow the scope of 28 U.S.C. §2241. Justices Thomas and Scalia both believed this was important to take up because "[a] decision upholding MCA 5(a) would obviate the need for detainees, the Government, and federal courts to struggle (as they did here) with Geneva Convention claims in habeas corpus proceedings. And, it would give the political branches a clearer sense of the constitutional limits to which new legislative policy initiatives must adhere."
The same clear sense of "new legislative policy initiatives" was not what the Court sought with today's decision in Briscoe v. Virginia. With its short per curiam opinion, the Court decided not to reconsider last term's Confrontation Clause decision Melendez-Diaz v. Massachusetts. The dissent from last term's 5-4 Melendez-Diaz decision left some SCOTUS watchers wondering whether Briscoe would be the case that would place some limits on what it felt was a "formalistic" application of the Confrontation Clause, thereby allowing exemptions for witnesses that the state must provide for live testimony at trial. Guidance from the Court seemed likely because the Court had held Briscoe until it decided Melendez-Diaz, scheduling it for consideration during its final conference in June. The Court granted certiorari, and heard oral arguments in early January. But, just two weeks after the Court heard arguments, the Court made it clear that Briscoe would not be the case to place limits on Melendez-Diaz.
So why did the Court hold Briscoe for conference, agree to take it, and then dodge the issue raised in the question presented on the very same day that it decided to dodge an issue that could affect habeas corpus and this country's treatment of detainees? We'll never know. What is clear though is that some issues may appear cert-worthy until the Court receives full briefing on the issue. During oral argument in Briscoe, Justice Scalia criticized the Court for taking up the case, and asked "Why is this case here except as an opportunity to upset Melendez-Diaz?" It could have been because the dissenters in Melendez-Diaz believed they might convince the newest member of the Supreme Court, Justice Sotomayor, to join their side. The only thing we can take from today's decision is an example of how Justice Sotomayor may, or may not, change the way the Court deals with the Confrontation Clause.
For posts on today's Briscoe decision check out Tony Mauro's post on Blog of Legal Times, Orin Kerr's post on Volokh Conspiracy, and Doug Berman's quick analysis at Sentencing Law and Policy.
According to the dissenting Justices, Noriega's case could have been the prime opportunity for the Court to address whether Section 5(a) of the MCA is valid. Boumediene left this issue open, as it only invalidated Section 7's attempt to strip federal courts of habeas jurisdiction, and Noriega argued that the MCA could not eliminate the Geneva Conventions as a source of rights upon which habeas petitioners may rely. He alleged the MCA went against the broad jurisdiction conferred by 28 U.S.C. §2241 over a habeas action filed by any person who claims to be held "in custody in violation of the Constitution or laws or treaties of the United States." If the Court had taken up the Noriega petition it could have decided whether Congress had the power to narrow the scope of 28 U.S.C. §2241. Justices Thomas and Scalia both believed this was important to take up because "[a] decision upholding MCA 5(a) would obviate the need for detainees, the Government, and federal courts to struggle (as they did here) with Geneva Convention claims in habeas corpus proceedings. And, it would give the political branches a clearer sense of the constitutional limits to which new legislative policy initiatives must adhere."
The same clear sense of "new legislative policy initiatives" was not what the Court sought with today's decision in Briscoe v. Virginia. With its short per curiam opinion, the Court decided not to reconsider last term's Confrontation Clause decision Melendez-Diaz v. Massachusetts. The dissent from last term's 5-4 Melendez-Diaz decision left some SCOTUS watchers wondering whether Briscoe would be the case that would place some limits on what it felt was a "formalistic" application of the Confrontation Clause, thereby allowing exemptions for witnesses that the state must provide for live testimony at trial. Guidance from the Court seemed likely because the Court had held Briscoe until it decided Melendez-Diaz, scheduling it for consideration during its final conference in June. The Court granted certiorari, and heard oral arguments in early January. But, just two weeks after the Court heard arguments, the Court made it clear that Briscoe would not be the case to place limits on Melendez-Diaz.
So why did the Court hold Briscoe for conference, agree to take it, and then dodge the issue raised in the question presented on the very same day that it decided to dodge an issue that could affect habeas corpus and this country's treatment of detainees? We'll never know. What is clear though is that some issues may appear cert-worthy until the Court receives full briefing on the issue. During oral argument in Briscoe, Justice Scalia criticized the Court for taking up the case, and asked "Why is this case here except as an opportunity to upset Melendez-Diaz?" It could have been because the dissenters in Melendez-Diaz believed they might convince the newest member of the Supreme Court, Justice Sotomayor, to join their side. The only thing we can take from today's decision is an example of how Justice Sotomayor may, or may not, change the way the Court deals with the Confrontation Clause.
For posts on today's Briscoe decision check out Tony Mauro's post on Blog of Legal Times, Orin Kerr's post on Volokh Conspiracy, and Doug Berman's quick analysis at Sentencing Law and Policy.
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