I’m already getting pumped for the October 2007 Term. On Friday, the court issued its final orders for the semester and they decided to hear Boumediene v. Bush and its otherwise-unimportant sister-case Al Odah v. US. One of my first posts, back on April 3, discussed the rejection of Boumediene’s petition for trial. Justices Stevens and Kennedy voted in favor of rejecting the certiorari because they felt that all ‘available remedies’ had not been exhausted. Justices Breyer, Ginsburg, and Souter voted to accept the writ and ‘expedite review.’
In order to grant any writ of certiorari, four justices must agree to hear the case. The rule is entirely unofficial and is listed in neither the court’s official regulations nor congressional statute. The apply named “Rule of Four” is designed to prevent a majority of justices from blocking review of a case in order to avoid the issue. Per this rule, at least one of the six Justices who originally voted against review has changed his vote. The most likely candidate is Justice Kennedy. Justice Kennedy has long sided with the liberal-minded Justices in detainee cases. In the landmark case Hamdan v. Rumsfeld Justice Kennedy voted in a 5-3 decision that left Justices Scalia, Thomas, and Alito in the minority. This carefully-worded opinion offers very little insight into his views on this specific case, leading both conservative and liberal blogs to claim him for their side. Liberals say that Justice Kennedy’s jurisprudence would prevent him from agreeing to hear a review just so he could squash it. Conservatives say that he is just now willing to wield the power of the conservative agenda. Both sides argue that now is the time for another landmark detainee case and Justice Kennedy is just the one to lead them to the promised land.