[UPDATE: 29 June 07, SCOTUS reconsidered and reversed itself, granting cert in the Hamdan case. Story HERE.]
Have been busy at work and unable to post, but the news keeps coming.
If you haven’t seen, SCOTUS this past Monday turned down both the Hamdan and Khadr certiorari petitions (Hamdan v. Gates/Khadr v. Bush (06-1169)). The two-sentence denial simply states that Justices Souter, Ginsburg, and Breyer would have granted the petition. Four votes are necessary to grant cert.
It is possible that after appeal to the D.C. Circuit Court, the cases might return to SCOTUS and retry a petition for cert. Because the justices gave no reason (which is typical) for their denial, we don’t know why the petition was denied. Certiorari is granted on an entirely discretionary basis, so the Court might simply have not felt like granting cert — they may also be waiting for a split in circuits before they take the case up. Currently the D.C. Circuit holds that the Guantanamo detainees have no Constitutional rights. If another circuit holds differently, the case would be more compelling to grant cert.
Notably, the D.C. Circuit’s holding is only persuasive as to other jurisdictions. Thus it’s not the “law of the land,” nor is SCOTUS’ entirely discretionary denial of cert significant as to whether they think the D.C. Circuit’s holding is good law. They may just not find the issue “ripe for review,” as we lawyers say.