Bench Memos

NRO’s home for judicial news and analysis.

Roberts, Ginsburg, Whatever


In its front-page What’s News column, the Wall Street Journal yesterday misreported the Supreme Court’s decision not to grant review of the Fourth Circuit’s ruling in the Padilla enemy-combatant case. Judge Luttig’s unanimous Fourth Circuit opinion ruled that President Bush had the lawful authority to detain militarily a U.S. citizen who fought on behalf of al Qaeda against the U.S. in a foreign combat zone and who then traveled to the U.S. for the avowed purpose of extending that combat against American citizens and targets on U.S. soil. After the Fourth Circuit’s ruling, the government charged Padilla in the criminal-justice system and transferred him out of military custody. By giving Padilla the relief that he was seeking, that action appeared to render moot the claim that he presented to the Supreme Court.

According to the Wall Street Journal’s brief item, “Roberts and two other justices wanted to decide the question regardless [of Padilla's transfer out of military custody], and said they’ll watch the case closely.” In fact, the three justices who dissented from the Court’s decision to deny review did not include Roberts; they were Souter, Ginsburg, and Breyer. Roberts (and Stevens) instead joined Justice Kennedy’s brief opinion explaining why denial of review was proper. Far from saying that “they’ll watch the case closely,” that opinion simply explained why prudential considerations disfavored granting review.

The What’s News items often seem to include ill-informed legal commentary. Given their tight space constraints, it would be best if they focus instead on at least getting the facts right.


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