Academic

Farber on Stevens & Scalia on Retroactive Jurisdiction Statutes

By Lawrence Solum

Daniel A. Farber (University of California, Berkeley - School of Law) has posted Justice Stevens, Habeas Jurisdiction, and the War on Terror on SSRN. Here is the abstract:

The Bush Administration chose Guantanamo as a detention site in the belief that the military base was immune from federal habeas jurisdiction, leading to a protracted dispute between the Executive Branch, the Supreme Court, and Congress. Justice Stevens played an important role in this struggle over federal jurisdiction, writing two critical majority opinions and an important dissent about habeas jurisdiction. His two majority opinions were countered by fervent dissents by Justice Scalia. Examining these clashes is well worthwhile because of the importance of the legal issues, but also because of the light they may shed on the different analytic approaches of these two influential Justices.

This paper gives particular attention to a seemingly arcane and technical battle over the retroactivity of jurisdiction-stripping statutes. Not unusually, where Justice Scalia saw a bright-line rule, which he accused the Court of wantonly trammeling, Justice Stevens instead saw a more pragmatic standard. A close examination of precedent supports Justice Stevens's view and rebuts Justice Scalia's accusation of. Rather, it was Justice Stevens's majority opinion that was the more faithful to the rule of law.

And from the paper:

In short, Justice Scalia seems to have overstated the clarity and severity (even in the Nineteenth Century) of the presumption in favor of applying jurisdiction-curtailing statutes to pending cases. He was able to point to only one arguable Supreme Court application of this presumption within the lifetimes of the current Justice. In contrast, the most recent Supreme Court opinion in Hughes, while perhaps factually distinguishable from Hamdan, squarely repudiates the concept that jurisdictional statutes are subject to special retroactivity rules. To the extent we entertain the presumption that Congress is aware of Supreme Court interpretation rules when it drafts statutes, Congress would not have believed in 2005 that any special rule applied to the application of statutes restricting jurisdiction to pending cases.

This is perhaps a small point on which to spend so many words, but it is important because it goes to Justice Scalia?s claim that the Court was flouting clear cut legal rules in upholding jurisdiction in Hamdan. The most that can be said is that Justice Stevens gave little weight to a somewhat unclear and archaic rule ? a rule that was (1) articulated without much justification and in varying forms; (2) was almost entirely found in century-old decisions (which themselves might be factually distinguishable); (3) was based mostly on a Nineteenth Century congressional drafting practice that might or might not continue today; and (4) is inconsistent in approach with the language of more recent opinions (particularly Justice Thomas?s opinion in Hughes).

Recommended!

Full post as published by Legal Theory Blog on May 18, 2009 (boomark / email).