So, is Padilla Moot? Better Yet, Will it Matter?

As first reported via SCOTUSBlog here, here, and here, three different sets of briefs were filed in Padilla on Friday -- Padilla's reply to the government in the Fourth Circuit; the briefs of various amici supporting cert in the Supreme Court, and the government's op. cert. Like me, I'm sure you're shocked, SHOCKED, to find disagreement about whether the case really is "moot" thanks to Padilla's pending criminal indictment in the Southern District of Florida (I can't get Will Smith out of my head -- "party in the city while [where] the heat is on.").

Not that anyone cares whether I think the case is moot (although, to be fair, I find compelling the argument that the government has pointedly not disavowed the ability to re-detain Padilla as an "enemy combatant" should things fall through in Miami).  But, thanks to Judge Luttig, the first people who will really have their say is the Fourth Circuit panel in Padilla, Judges Luttig, Michael, and Traxler.

So, it seems to me the better question, this Monday morning, is what happens to the various mootness arguments once ("if") the Fourth Circuit decides to vacate its own decision.  After all, without a Fourth Circuit decision, what's left to contest?

At least technically, it's hard to see how a vacated Fourth Circuit opinion would necessarily undermine the Supreme Court's authority to review the case.  After all, the government _did_ timely file a notice of appeal to the Fourth Circuit, at which point the Supreme Court could have granted cert. before judgment (Padilla actually asked for such a writ, but his petition was denied). I don't see why the procedural posture would be any different with a vacated Fourth Circuit opinion. The Court has always taken a fairly generous view of its cert. jurisdiction under 28 U.S.C. [sec.] 1254, e.g., Hohn v. U.S., in 1998.

So, if the Court really wants the case, nothing the Fourth Circuit does can seriously get in the way. The problem is that, if the Court is even remotely on the fence about taking the case, the absence of a Fourth Circuit opinion to review has at least the practical affect of making the case less urgent. Without a Fourth Circuit opinion, there won't be, as I wrote a month ago, a fear of Justice Jackson's "loaded weapon" from Korematsu.

I still think the issues raised in Padilla are important enough to tolerate any means around the strict confines of mootness doctrine, and, as I argued in Jurist shortly after Padilla was charged, a 1988 concurrence by the late-Chief Justice Rehnquist may provide some of the doctrinal framework for getting there.  But as a far-away observer of the internal goings-on in D.C., it seems to me that the real question is how badly the Court wants Padilla back, and not, as all of Friday's filings debate, whether the case is or isn't moot.

Quite the legal realist's take. But what else could you expect on a Monday?