This short article is a follow-up to a piece I wrote two years ago on Hamdan v. Rumsfeld, SSRN No. 913822. While applauding the result in Hamdan, I critiqued the Supreme Court for missing a “teachable moment” and obscuring the great issues at stake in prolixity and mind-numbing technical detail.
In this article, I applaud the Boumediene v. Bush Court not only for its result—that the Constitution’s Suspension Clause can require habeas corpus for aliens held abroad under certain circumstances—but for its reasoning and style as well. This time, the majority of five did not miss its “teachable moment,” but placed its decision squarely on the bedrock of Anglo-American rule of law, going back to the Magna Carta.
I outline how the majority did so. I also analyze how the dissenters misapplied the key precedent of Johnson v. Eisentrager, ignoring enormous factual distinctions. Finally, I analyze how the dissenters belittled the majority’s real deference to the executive and wrongfully accused the majority of a judicial activism that better characterized their own approach.
In the footnotes, I analyze what guidance the Court provided on three factual issues underlying application of the Suspension Clause: (1) when it applies; (2) when it has been invoked; and (3) when an alternative to habeas corpus is an adequate substitute for it. I conclude that the Court provided significant general guidance only on issue (1).
Dratler, Jay, "Bush v. Boumediene: The Court is Back" (2008). Akron Law Publications. 70.