The Court . . . took no action on the pending war-on-terrorism appeal by Jose Padilla. The Court's electronic docket shows that the case of Padilla v . Hanft (05-533) will be considered again at the private Conference on Friday; this will mark the seventh time the case has been examined. Padilla, a U.S. citizen, was designated an "enemy combatant" after his arrest on returning to the U.S. from abroad. He spent more than three years in a Navy brig before the federal government obtained criminal charges against him, and transferred him to civilian custody.
The last time the case came before the Court, four justices voted to order him immediately released, and five justices denied relief on the procedural grounds that the case was filed in the wrong court. Until his case hit the U.S. Court of Appeals for the 4th Circuit, he was successful on the merits in two trial courts and another circuit of the U.S. Court of Appeals. But, the 4th Circuit ruled against him, and the adminstration, just days after the ruling, to the 4th Circuit's great consternation, suddenly decided that the criminal justice system was perfectly adequate to handle his case.
The Padilla case is one of the only terrorism cases on the Supreme Court docket not potentially impacted by the Detainee Treatment Act of 1995, because it involves no one detained outside the United States.
The government would like the case to be declared moot and escape U.S. Supreme Court review, leaving them with a precedent (perhaps vacated) in their favor allowing the practice, which they could use as a sword to encourage other terrorism case defendants to enter into plea bargains or otherwise cooperate. Prior cases have left strong indicatations that if the case did go to the U.S. Supreme Court, that the result would not be favorable to the government, and they would like to delay that result, and any accompanying lack of leverage that a decision against the government might produce, as long as possible.
Civil liberties proponents, in contrast, would like the U.S. Supreme Court take the case as one likely to recur but escape review, just as Padilla's case did, because they feel it is important for the court to limit a frightening power grab by the President, in a case with particularly sympathetic facts (the guy was arrested by civilian authorities, unarmed, in the Chicago O'Hare airport, and the government has repeatedly changed its story in the case about what kind of threat he posed).
The fact that this case has been repeatedly postponed on the Court's calendar suggests that it is the subject of real conflict within the Court itself. It takes four justices to grant a petition for certiorari -- and, the four justices who urged his immediately release remain on the Court and clearly have the power to have the case considered. But, those who want to take the case clearly don't want to have the case again dismissed on a technicality, like mootness, as opposed to resolving the issues of Presidential power that the case presents on the merits.
On the merits, the President probably still loses. The four dissenters in Padilla I, and a concurring opinion on other grounds from Justice Scalia, based on his prior rulings in terrorism cases would be enough. On the merits, it is also likely that Justice Kennedy, seeing a certain ruling in favor of Padilla, would join the majority (after all, he joined O'Connor in Hamdi in making a strong distinction between battlefield combatants captured on foreign soil like Hamdi and others circumstances) in part, in hope of crafting a narrow exception to Presidential power in future cases, rather than an unduly broad limitation. Justice Thomas has indicated that he probably believes that the Padilla detention was lawful in his prior opinions which grant more expansive power to the executive than those of any other justice. Roberts and Alito are new to the Court, so their votes are less easily predicted, although one would expect that they would be more likely to side with Justice Thomas than anyonoe else on the Court.
But, I suspect that many member of the five judge conservative majority (Scalia, Thomas, Roberts, Alito and Kennedy), would like to avoid reaching the merits if they don't have to do so.
Scalia, Thomas, Rehnquist, Kennedy and O'Connor did this in Padilla I, despite the fact that the case was exceptional enough that it could have taken it without unduly upsetting the general rules that apply to habeas corpus (as it managed to do in the Rasul case, where it made an exception for cases arising in a place where no U.S. District Court was expressly given habeas corpus jurisdiction). For example, they could have crafted a rule that applies only to persons who have not been detained pursuant to an arraignment or court mittimus, or could have ruled that jurisdiction could not be divested from a court without notice to a counsel of record once that counsel was appointed, without notice and hearing. But, instead they chose delay, in part to see how the issue would shake out as the hysteria of war faded, effectively buying the President time to use extraordinary powers on an emergency basis.
Given that Roberts is widely viewed a similar to Rehnquist in judicial philosophy, and if anything, a stronger proponent of executive power, and that O'Connor was far more moderate than Justice Alito, there is every reason to believe that these two justices would prefer to claim that they are playing umpires and that the Padilla case is now moot and thus can't be considered by them (despite the fact that many important cases before the U.S. Supreme Court, such as Roe v. Wade, which both Roberts and Alito agreed was settled law, presented similar mootness issues).
I suspect that the delay we are seeing now involves Justices Scalia and Kennedy being lobbied hard on the issue of mootness v. ruling on the merits, a decision in which both men would likely be in the majority. For now, Padilla, and the nation, can only wait.