Still, it doesn’t seem like many on the highest bench agree with Antonin.
With Justice Antonin Scalia taking part — and, in fact, providing the only clearcut signs of unstinting support for the federal government’s arguments — the Supreme Court on Tuesday probed deeply into the validity of the war crimes tribunals set up by President Bush, and came away looking decidedly skeptical. From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing “military commission” scheme may well fail.
The Court spent comparatively little time on the issue of whether it has jurisdiction to proceed to a ruling on the merits in the case of Hamdan v. Rumsfeld (05-184), but Justices Stephen G. Breyer and David H. Souter strenuously — and repeatedly — advanced the point that the Court would have to find it has jurisdiction in order to avoid the very difficult constitutional question of Congress’ power to abolish all forms of habeas challenge to the treatment of war-on-terrorism detainees. It was a point that seemed likely to draw the support of enough Justices to prevail.
By the way, John Roberts had to recuse himself from the case, so there are only eight Justices hearing this one.
And since O’Connor has left the bench, it looks like Kennedy is the new swing vote:
…Kennedy seemed troubled about the legitimacy of the tribunals as presently arranged. Most of his questions seemed aimed at locating the specific deficiencies that might be found in their functioning. At one point, he suggested openly to the detainees’ lawyer, Georgetown law professor Neal Katyal, that the Court might well “think there is merit” in his argument that the tribunals were not “properly constituted.” In that event, Kennedy suggested, the Court would not have to get into the complex question of what kind of charges were within the tribunals’ authority to try.
We’ll see how this case pans out, but it doesn’t look good for the government right now.