SC Lawyer, Sept. 2004, #3. Court is adjourned - what have we learned?.

• Author: By Prof. Andrew Siegel

South Carolina Lawyer

2004.

SC Lawyer, Sept. 2004, #3.

Court is adjourned - what have we learned?

South Carolina LawyerSeptember 2004Court is adjourned - what have we learned?By Prof. Andrew SiegelIn a series of cases that largely flew under the radar screen, the Court gave strong signals that it had little interest in pushing much further in its 15 year-long campaign to limit the powers of the federal government and enhance the autonomy of the states.

When the justices of the U.S. Supreme Court released their final opinion of their most recent term on June 28 and headed off for their "summer recess," they left behind 80 decisions for practitioners and lower courts to digest. Quantitatively, the Court's output of 80 decisions, including only 74 argued cases, ranks as one of the smallest in recent memory. Qualitatively, the term was more momentous - including decisions in cases touching on such high profile issues as the scope of the president's powers in fighting the "War on Terror," the constitutionality of including the words "under God" in the Pledge of Allegiance and the right of private individuals to investigate the contacts between Vice President Dick Cheney and energy industry officials. Even in these cases, however, the Court moved cautiously - in some instances finding procedural reasons to avoid the substance of the case; in other cases ruling narrowly and carefully on the merits.

That is not to say that the current term was without its news. In the terrorism cases, the Court combined a cautious approach to the resolution of the particular cases with a ringing and near unanimous (8-1) repudiation of the president's claim that the unique nature of the "War on Terror" gave the commander-in-chief vast new powers to act without consultation with or review by the other branches of government. In a series of cases that largely flew under the radar screen, the Court gave strong signals that it had little interest in pushing much further in its 15-year-long campaign to limit the powers of the federal government and enhance the autonomy of the states. And, in two groundbreaking cases out of the state of Washington, the Court gave bold new interpretations to criminal defendants rights under the Sixth Amendment's confrontation and jury trial clauses.

What follows are summaries of 26 cases, roughly one-third of the Court's output. The summaries include not only the term's most high profile cases but also many others that - while less newsworthy - may prove to be of more interest and utility to practitioners and courts.

1. Civil cases

   1. The "War on Terrorism" and the powers of the executive branch

      1. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004)

         In the most significant ruling on the scope of presidential powers in the last half century, the Court held (8-1) that the president's powers as commander-in-chief do not provide him with unilateral authority to order the detention of alleged "enemy combatants" or immunize such designations from judicial review. However, the Court held (5-4) that Congress authorized the president to detain at least some enemy combatants captured in the "War on Terror," including American citizens captured while raising weapons against the United States on the field of battle. Therefore, at least for the time being, American citizens in this position are entitled to - but only to - a judicial proceeding to determine whether they are properly classified as enemy combatants. At that hearing, alleged enemy combatants are entitled to counsel and to present evidence though the full scope of their procedural rights remains open.

      2. Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004)

         The Court held (5-4) that the petitioner - an American citizen arrested at a United States airport on suspicion of planning a terrorist attack in conjunction with Al Qaeda - had filed his habeas corpus petition in the wrong federal court and dismissed his petition for lack of jurisdiction. Though the Court did not reach the merits of this case and did not issue a binding opinion on these issues, the dissents in this case and the opinions in Hamdi reveal that a clear majority of the Court believes that the indefinite executive detention of an American citizen detained on American soil for suspicion of criminal activity exceeds the president's authority and/or violates the citizen's rights. The stage for this litigation now moves to Charleston, where Padilla's lawyers have already refiled their case pursuant to the Supreme Court's jurisdictional holding.

      3. Rasul v. Bush, 124 S. Ct. 2686 (2004)

         The Court held (6-3) that U.S. courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad and held at the United States Naval Base in Guantanamo Bay, Cuba. The Court based its conclusion on the fact that the United States possessed "plenary and exclusive" control, though not "ultimate sovereignty," over the Guantanamo Bay base. The decision did not address the substance of the claims the detainees may make when they get their hearings in U.S. courts nor the scope of the president's authority to hold foreign detainees captured during military hostilities.

      4. Cheney, vice president of the United States, v. United States District Court for the District of Columbia, 124 S. Ct. 2576 (2004)

         This case involved some very sexy facts and some very technical issues of law arising out of attempts by watchdog groups to investigate contacts between the members of the president's Energy Task Force (including its chairman, Vice President Cheney) and energy industry executives and lobbyists. The vice president had objected to a district court discovery order requiring that the task force turn over records to establish whether it was entitled to...