Padilla v. Hanft (05-533)

April 3, 2006 Supreme Court Update

Greetings, Court fans!
After a long, long, wait, the Court finally acted on the petition in Padilla v. Hanft (05-533), denying certiorari. As you probably remember, Padilla is a U.S. citizen who was arrested at Chicago O'Hare airport on a material witness warrant. When his court-appointed counsel moved to vacate the warrant, President Bush declared him an "enemy combatant" and ordered him moved into military custody on a naval brig off the coast of South Carolina. Padilla then filed a habeas petition contending that, as an American citizen arrested on U.S. soil, he could not be held indefinitely without charge; he requested that he either be released immediately or charged with a crime. Padilla won in the Second Circuit, but in 2004 the Court found that the Second Circuit had no jurisdiction over the case because the brig was within the jurisdiction of the Fourth Circuit – not the Second. So Padilla began the process again, this time in South Carolina. The district court there agreed with Padilla and ordered that he be released or charged, but the Fourth Circuit reversed and Padilla petitioned for cert. Then it got really convoluted: While Padilla's petition was pending, the government indicted Padilla and sought to move him into civilian custody, even taking the position that the Fourth Circuit should vacate its decision (in the government's favor!) as moot. That prompted the Fourth Circuit to issue a strongly worded order expressing concern that the government's actions had the appearance at least of an attempt to moot the case and thereby avoid review by the high Court.
After numerous re-listings, the Court finally denied Padilla's petition Justices Ginsburg, Souter and Breyer would have granted cert, but couldn't convince Stevens join them. Ginsburg penned a brief dissent from the denial of cert because she believed the case "raises a question of profound importance to the Nation." (Not surprising since she would have decided the case back in 2004 too.) Ginsburg emphasized that the case was not moot because it was capable of repetition, yet evading review: "Although the Government has recently lodged charges against Padilla in a civilian court, nothing prevents the Executive from returning to the road it earlier constructed and defended." More surprising than Ginsburg's dissent was Justice Kennedy's concurrence in the denial of cert, which was joined by Stevens and (most notably) Chief Justice Roberts. While not deciding the mootness issue, those justices were swayed by "strong prudential considerations disfavoring the exercise" of jurisdiction where Padilla's current (i.e., civilian) custody status would be unaffected by a ruling in his favor. This was especially true because Padilla's claims raised fundamental issues respecting the separation of powers and the proper role and function of the courts, which should not be considered in such a "hypothetical" setting. The concurring justices, however, also wanted to assuage the concern that the government could one day again declare Padilla an enemy combatant without much recourse due to the slow wheels of justice. As Kennedy wrote: "In light of the previous changed in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again." If that were to happen, the Court instructed the lower courts to act promptly on any action he might bring and noted that Padilla "retains the option of seeking a writ of habeas corpus in this Court" directly. One wonders if the direct route will be available for other detainees who have been held for long periods of time.
The Court also granted cert in two cases today, Lopez v. Gonzalez (05-547) and Toledo-Florez v. United States (05-7664), both of which address what kind of drug conviction can lead to deportation of an immigrant. The question presented in both cases is whether, if a state drug conviction is a felony under state law but would constitute only a misdemeanor under federal law, does that qualify as an "aggravated felony" that can lead to deportation? The cases were consolidated and will be argued together next Term.
That's all for today. We'll be on the lookout for more tomorrow.

Kim & Ken

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400