Boumediene's quiet theory: access to courts and the separation of powers.

• Author: Vladeck, Stephen I.

Ronald Dworkin may not have been exaggerating when he referred to the Supreme Court's June 2008 decision in Boumediene v. Bush (1) as "one of the most important Supreme Court decisions in recent years." (2) The Court there held that the Constitution's Suspension Clause: (3) "has full effect at Guantanamo Bay," (4) and that the Military Commissions Act (MCA) of 2006 (5)--which precludes federal jurisdiction over habeas corpus petitions brought by noncitizens detained as "enemy combatants" (6)--fails to provide an adequate alternative to the writ of habeas corpus, (7) As such, the Boumediene majority struck down section 7 of the MCA, (8) only the second instance in which the Supreme Court has invalidated a statute because it unconstitutionally removes federal jurisdiction, (9) and the first time it has ever concluded that an act of Congress violates the Suspension Clause. (10)

Courts and commentators alike have already felled many forests grappling with the hard questions Boumediene leaves in its wake. Just for starters, do other constitutional provisions "ha[ve] full effect" at Guantanamo? (11) Does the Court's analysis of the availability of habeas corpus to noncitizens at Guantanamo open the door--and the potential floodgates--to habeas petitions from noncitizens held elsewhere overseas, particularly in Afghanistan and Iraq? (12) Does the right articulated by the Boumediene majority protect a remedy for claims other than "core" challenges to executive detention? (13) Does it even include a right to be released (into the United States) when there is nowhere else to send those whom the government lacks the legal authority to detain? (14) Indeed, these questions are only a sampling; it will no doubt be years before the direct implications of Boumediene are fully fleshed out. (15)

My project in this Article is not to take up these necessarily fluid questions of application, but to look more carefully at the implications of the "quiet theory" (16) underlying Justice Kennedy's lengthy and complex opinion for the Boumediene majority. In particular, my focus is on what we should take away from his repeated allusions to the relationship between habeas corpus and the separation of powers--a recurring (if surprising) theme of the seventy-page opinion, typified by passages like the following:

The [Suspension] Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the "delicate balance of governance" that is itself the surest safeguard of liberty. The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause. (17) The Boumediene majority opinion expressly invokes the separation of powers in at least ten additional passages, (18) even though the questions before the Court had to do with the geographic scope and substantive content of the Suspension Clause, and not with a more general alleged violation of the separation of powers (as was the case in Hamdan). (19) Reading Boumediene, one is left with the distinct impression that for Justice Kennedy, at least, the writ of habeas corpus is in part a means to an end--a structural mechanism protecting individual liberty by preserving the ability of the courts to check the political branches.

Thus, at other points in Boumediene, Kennedy took pains to emphasize that "the Framers deemed the writ to be an essential mechanism in the separation-of-powers scheme," (20) that, per Alexander Hamilton, "the writ preserves limited government," (21) and, perhaps most pointedly, that "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers." (22) As the opinion concludes,

Security subsists ... in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. ... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. (23) In this respect, Justice Kennedy's separation of powers focus is reminiscent less of his opinions in the other War on Terrorism cases (24) than of his majority opinion in Legal Services Corp. v. Velazquez, (25) where the Court struck down part of a federal statute that prohibited legal aid lawyers who received federal funding from challenging the validity of existing welfare laws. (26) Although the Velazquez Court concluded that the spending restriction violated the First Amendment, Justice Kennedy emphasized that such analysis was bolstered by the "severe impairment of the judicial function" such a restriction might otherwise effect. (27) In both cases, Justice Kennedy thereby suggested that the injury the statute inflicted upon the role of the courts was at least relevant, if not central, to the constitutional analysis.

Whereas some might view these passages in both Velazquez and Boumediene as little more than rhetorical flourishes, (28) it is difficult to understand the crux of Kennedy's analysis in the latter case--of why the review available under the MCA and the Detainee Treatment Act (DTA) of 2005 (29) failed to provide an adequate alternative to the writ of habeas corpus--without these first principles. At least where habeas corpus is concerned, the purpose of judicial review, in Kennedy's view, appears to be as much about preserving the role of the courts as it is about protecting the individual rights of the litigants.

It was with this analytical imperative in mind that Justice Kennedy disaggregated the access-to-courts question from the adequacy-of-the-process question, suggesting that it is was neither necessary nor sufficient, in resolving whether the Combatant Status Review Tribunals (CSRTs) provided an adequate substitute to habeas corpus, to ask whether their procedures comported with due process. (30) Even though Chief Justice Roberts argued vehemently in dissent that it was illogical to reach the constitutionality of the removal of habeas jurisdiction without deciding whether individual petitioners had actually been denied due process, (31) Justice Kennedy held firm, reasoning that the risk of error in CSRT proceedings was too high to trust that CSRT appeals were an adequate alternative to habeas corpus. (32)

Its significance to the result in Boumediene notwithstanding, the larger implications of Justice Kennedy's analysis remain to be seen. Only time will tell whether his not-unprecedented suggestion that habeas corpus is about accuracy more than fairness will have implications for other forms of federal habeas corpus, including review of state court convictions and of challenges to removal orders in immigration cases. (33) But there is one piece of this puzzle that is ripe for consideration now--namely, Justice Kennedy's suggestion that the access to courts protected by the Suspension Clause is (at least largely) about protecting the courts as such.

In nonhabeas cases, such a view is inconsistent with current case law. As recently as 2002, the Court has noted that, "[h]owever unsettled the basis of the constitutional right of access to courts, our cases rest on the recognition that the right is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court." (34) Although those cases in particular concerned access to the courts as a practical matter, the limited jurisprudence with respect to Congress' power to preclude judicial review reflects a similar understanding--i.e., that a "serious constitutional question" would arise only "if a federal statute were construed to deny any judicial forum for a colorable constitutional claim." (35)

At first blush, such logic seems entirely intuitive. Because federal courts have jurisdiction to determine their jurisdiction, (36) even the most complete and unambiguous denial of access to the courts leaves intact the power of the courts to pass upon the constitutionality of such preclusion. (37) Thus, courts can decide whether the affected litigants have substantive rights before deciding whether the physical or substantive preclusion of judicial review is constitutional, notwithstanding the Supreme Court's 1998 decision in Steel Co. v. Citizens for a Better Environment (38) and its sweeping repudiation of "hypothetical jurisdiction." (39) Because these cases hold that the "injury" inflicted by the denial of access occurs only if the litigants do have rights on the merits that courts are unable to vindicate, the consensus view pre-Boumediene seemed to be that there is simply no distinct separation of powers issue in denial-of-access cases--that there is no injury to the courts separate from, or even on top of, any injury to the individual litigants. (40)

The origins of both classes of access claims, however, tell a rather different story. With respect to the constitutional right of access to the courts, (41) the early cases, especially Ex parte Hull, (42) "appear[] to have been motivated more by notions of federalism and the power of the federal courts than [by] the rights of prisoners." (43) Pointedly, the stated justification...