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.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association. The Court overturned the D.C. [...]