Cert. Denial in Padilla -- Early Thoughts

As first reported on SCOTUSBlog, the Supreme Court denied certiorari today in Padilla v. Hanft, and, perhaps more surprisingly, left intact the Fourth Circuit's controversial decision from last September holding that Padilla's military detention was authorized by the AUMF.

Three Justices -- Souter, Ginsburg, and Breyer -- noted that they would have granted certiorari. Three Justices -- Chief Justice Roberts, and Justices Stevens and Kennedy -- filed an opinion explaining why they denied review. As Justice Kennedy wrote for the trio:

In light of the previous changes 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. That concern, however, can be addressed if the necessity arises. Padilla is now being held pursuant to the control and supervision of the United States District Court for the Southern District of Florida, pending trial of the criminal case. In the course of its supervision over Padilla’s custody and trial the District Court will be obliged to afford him the protection, including the right to a speedy trial, guaranteed to all federal criminal defendants. See, e.g., U. S. Const., Amdt. 6; 18 U. S. C. §3161. Were the Government to seek to change the status or conditions of Padilla’s custody, that court would be in a position to rule quickly on any responsive filings submitted by Padilla. In such an event, the District Court, as well as other courts of competent jurisdiction, should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised. Padilla, moreover, retains the option of seeking a writ of habeas corpus in this Court. See this Court’s Rule 20; 28 U. S. C. §§1651(a), 2241.

Justice Ginsburg filed a separate opinion explaining her dissent.

I'll have much more to say later. On first reaction, three fascinating things jump out:

1. Justice Stevens?? It was his dissenting opinion two years ago that concluded that Padilla's case implicated "nothing less than the essence of a free society." Today, he appears to be the critical vote to deny review.
2. The timing -- the only substantial development since the last time the Court decided not to act on the cert. petition is last week's argument (and Conference) in Hamdan. What effect might that have had on the decision not to hear this case? It's impossible to say, but it's intriguing to speculate...
3. The Court denied review, rather than, as some had speculated, grant certioari, vacate the decision below, and remand with instructions to dismiss (a so-called "Munsingwear" order). This leaves the Fourth Circuit's original opinion intact, even though the original panel itself seemed very dubious about its viability after Padilla was transferred. Does this now mean that Padilla's lawyers can go back to the Fourth Circuit and ask them to vacate (since, presumably, they did not do so in December largely to foster possible Supreme Court review)?

Lots of questions... I'll try to have some initial answers a little later.

Update: Marty summarizes his early thoughts, with which I entirely concur, over at SCOTUSBlog.