By turning a statute limiting court jurisdiction into a delegation of power by Congress to the Supreme Court, the Hamdan v. Rumsfeld opinion is a political masterstroke. This Essay explains why “the least dangerous branch” felt empowered to ignore congressional limits on its authority, repudiate presidentially created military tribunals, and conclude that the Geneva Convention applies to Guantánamo detainees. In so doing, this Essay supports the Author’s earlier assertions in Should the Supreme Court Fear Congress?, an essay published in last year’s Minnesota Law Review Symposium on the future of the Supreme Court. In that Essay, the Author argued that the Supreme Court has little reason to fear a backlash from Congress. For identical reasons, the Hamdan Court had no reason to fear Congress. Congress never challenged judicial independence when enacting legislation limiting federal court jurisdiction over enemy combatants. In making this point, this Essay examines both the politics surrounding the Detainee Treatment Act (2005 legislation limiting court power over Guantánamo detainees) and the Military Commissions Act (2006 legislation intended to forbid habeas filings by enemy combatants). The Essay, moreover, makes use of positive political theory to assess the Court’s Hamdan ruling. In particular, the Essay highlights the reasons why the Court would want to protect (if not expand) its institutional turf and, in so doing, limit the executive. Finally, the essay makes some predictions about ongoing federal court review of the Military Commissions Act.
News & Events
-
Volume 97 Lead Piece Profiled in New York Times
The Volume 97 Lead Piece, a study of how the Supreme Court treats business interests by distinguished legal scholars Lee Epstein, William M. Landes, and Richard A. Posner, was profiled in the May 5, 2013 edition of the New York Times. The story, titled Corporations Find a Friend in the Supreme Court, [...]
-
Volume 98 Spring Submissions Closed
The Minnesota Law Review has closed the spring submissions period for Volume 98. Submissions for Volume 98 will reopen on Thursday, August 1. Please see the submissions page for more details.
-
Volume 98 Submissions Will Open Feb. 15
The Minnesota Law Review will begin accepting submissions for Volume 98 on Friday, February 15, 2013. Please see this page for more details.
-
Minnesota Law Review Announces Volume 98 Editorial Board
The Minnesota Law Review is pleased to announce its Volume 98 editorial board, headed by Editor in Chief Jake Vandelist.
-
Minnesota Law Review Announces 2013 Symposium Topic
The Minnesota Law Review is pleased to announce that its 2013 symposium will address the legal and political issues facing organized labor in the United States. The symposium will be held at the University of Minnesota Law School on October 25, 2013.
Recent Issues
- Volume 97 – No. 5
- Volume 97 – No. 4
- Volume 97 – No. 3
- Volume 97 – No. 2
- Volume 97 – No. 1
- Volume 96 – No. 6
- Volume 96 – No. 5
- Volume 96 – No. 4
- Volume 96 – No. 3
- Volume 96 – No. 2
- Volume 96 – No. 1
- Volume 95 – No. 6
- Volume 95 – No. 5
- Volume 95 – No. 4
- Volume 95 – No. 3
- Volume 95 – No. 2
- Volume 95 – No. 1
- Volume 94 – No. 6
- Volume 94 – No. 5
- Volume 94 – No. 4
- Volume 94 – No. 3
- Volume 94 – No. 2
- Volume 94 – No. 1
- Volume 93 – No. 6
- Volume 93 – No. 5
- Volume 93 – No. 4
- Volume 93 – No. 3
- Volume 93 – No. 2
- Volume 93 – No. 1
- Volume 92 – No. 6
- Volume 92 – No. 5
- Volume 92 – No. 4
- Volume 92 – No. 3
- Volume 92 – No. 2
- Volume 92 – No. 1
- Volume 91 – No. 6
- Volume 91 – No. 5
- Volume 91 – No. 4
- Volume 91 – No. 3
- Volume 91 – No. 2
- Volume 91 – No. 1
- Volume 90 – No. 6
- Volume 90 – No. 5
- Volume 90 – No. 4
- Volume 90 – No. 3
- Volume 90 – No. 2
- Volume 90 – No. 1