Fate of GTMO in Justice Kennedy's Hands

Yesterday it was announced that the Supreme Court will hear habeas claims of Guantanamo detainees. The writ of habeas corpus-- which allows all persons to challenge the grounds of their detention-- was stripped from 'unlawful enemy combatants' last year by passage of the Military Commissions Act. The Supreme Court will hear the case as early as December 2007.
The fate of the detainees are now likely in Justice Kennedy's hands. The four most conservative members of the court-- John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.-- will undoubtedly side with the government. The four liberal justices-- John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter-- will weigh in on the side of the detainees right to challenge their detention. The vote of Anthony M. Kennedy is key. According to the New York Times:

Fully a third of the court’s decisions, more than in any recent term, were decided by 5-to-4 margins. Most of those, 19 of 24, were decided along ideological lines, demonstrating the court’s polarization whether on constitutional fundamentals or obscure questions of appellate procedure. The court’s last-minute decision, announced on Friday, to hear appeals from Guantánamo detainees required votes from at least five of the nine justices.

Of the ideological cases decided this term, the conservative majority, led by Chief Justice John G. Roberts Jr. and joined by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., prevailed in 13. The court’s increasingly marginalized liberals — Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer — prevailed in only six, including the four Texas death penalty cases.

The difference depended on how Justice Anthony M. Kennedy voted. Remarkably, he was in the majority in all 24 of the 5-to-4 cases. In the 68 cases the court decided by signed opinions, Justice Kennedy dissented only twice.

Fortunately, on the issue of Guantanamo, Kennedy has been clear. He sided with the majority in Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld. While it will likely be a close 5-4 decision, the vote of Kennedy should reaffirm habeas-- thus help reinstate the rule of law in the United States.