Monday Roundup
The South Dakota legislature has rejected a bill which would require hospitals to inform rape victims of the availability of emergency contraception.
Jonathan Hafetz argues that the D.C. Circuit's recent decision holding that Gitmo detainees have been stripped of their habeas rights is riddled with historical inaccuracies:
In fact, in no case before 1789 was the common law writ of habeas corpus held not to extend to territory under the crown’s exclusive control and jurisdiction. To the contrary, courts historically resolved any questions about the writ’s territorial reach in favor of its availability. The default rule in favor of habeas jurisdiction should apply with even greater force where the executive deliberately seeks to create a prison in a territory under its complete and permanent control to circumvent judicial review, as it has done at Guantanamo. Judge Randolph also ignored the distinction between statutory and common law habeas. Judge Randolph pointed to Habeas Corpus Act of 1679, reasoning that the act’s time-limits for producing a prisoner showed that the writ would not run outside the sovereign territory of the crown. But this statute applied only to criminal cases and did not affect the common law writ which remained available in cases of executive and other non-criminal detention, including detention by the military. No territorial limits were placed on the common law writ’s reach, and it was this writ, not the 1679 act, that traveled to America and was operating in all thirteen colonies that rebelled in 1776. (Judge Randolph’s statement that there is no common law jurisdiction misses the point; as the Supreme Court explained in INS v. St. Cyr (533 U.S. 289 (2001)), the Suspension Clause guarantees statutory habeas jurisdiction at least in all cases where the writ would have been available at common law). In addition, it is ironic indeed to claim that the 1679 act – whose procedural reforms prompted William Blackstone to extol the statute as a “bulwark of individual liberty” – sanctions the creation of lawless enclaves in the twenty-first century. Merely because it might have been impractical to impose the 1679 act’s time-limits on habeas petitions filed by or on behalf of individuals held overseas four centuries ago does not support limiting constitutional habeas jurisdiction today to territory where the United States exercises sovereignty.
Geoffrey Stone explains the consequences of a lost writ of habeas corpus:
The writ of habeas corpus is a bulwark of Anglo-American law. The writ enables an individual who has been detained by government officials to ask a court - an independent branch of the government - to determine whether his detention is lawful. Without the writ, a king or a president could order the indefinite imprisonment of anyone he wants, at any time, for any reason. This is why the "Great Writ" was so fundamental to the framers of our Constitution.
Rick Hasen explains what's at stake in today's cert grant of a challenge to a "top two" primary statute:
This unanimous opinion in Washington State Republican Party v. State of Washington is a very important one, clarifying the reach of some dictum in the Supreme Court's 2000 opinion in California Democratic Party v. Jones. Jones held that a blanket primary (where all voters could vote for any party candidate, regardless of the voters' party affiliation) violated the First Amendment associational rights of political parties that objected to this form of primary. Jones in dicta held that a truly nonpartisan primary, with the top two candidates going on to a run-off, would not violate the parties' First Amendment rights.In response to Jones (which caused Washington State's blanket primary to be struck down), voters passed a measure imposing a top two primary, but allowing candidates to use their party "preferences" on the ballot. Today the Ninth Circuit held that this form of primary violated that First Amendment rights of parties under Jones, because the use of the party label still forced association on parties that did not want it.
The Miami Herald criticizes reporters who focus on Anna Nicole Smith to the exclusion of Jose Padillia.
and finally, in a debate with Canadian Supreme Court Justice Ian Binnie, Justice Scalia expressed certainty of his own judgment regarding the innocence of criminal defendants before his Court. "I have been on the court for 20 years and I have not seen a case where I thought there was the slightest doubt about the person's innocence."