Analysis: Hamdan and the prospects of tie votesMarch 26, 2006 | 10:37 PM | Lyle Denniston
On Tuesday morning, at 11 o'clock or a few minutes after, Chief Justice John G. Roberts, Jr., is expected to rise from the bench, and depart from the courtroom. He has taken himself out of every preliminary action on the war-on-terrorism case of Hamdan v. Rumsfeld (05-184), so that is expected to continue Tuesday. But his departure raises at least the possibility that the other eight Justices might cast a 4-4 tie vote.
If such a vote comes on the merits, the result will be clear-cut: the Court will have upheld a decision by the D.C. Circuit Court finding no legal defect in ithe war crimes tribunals called "military commissions." In that event, no precedent would be set, and the Justices will issue no opinion. Still, that would mean that foreign nationals facing war crimes charges would be tried under the system the Pentagon now has in place and ready at the detainee prison at Guantanamo Bay, Cuba. If any were then convicted in such a proceeding, they presumably could attempt to bring some kind of challenge in federal courts, although the scope of that kind of review s in doubt.
But before an eight-Justice Court could rule on the merits in the Hamdan case, it must first satisfy itself that it has jurisdiction to hear and decide that dispute. The Supreme Court's jurisdiction to hear appeals is not open-ended, so a threshold issue in any case is whether a given lawsuit can, indeed, be decided there. Suppose, though, that the Justices split 4-4 on this issue in Hamdan. What then? The result is not as clear as it would be if the Court proceeded to the merits, and split 4-4. ...
(NOTE: At a legal conference Friday in Washington, the issue of a tie vote on jurisdiction in Hamdan was explored informally among a few seasoned Supreme Court advocates. The consensus: a 4-4 vote would not be sufficient to find jurisdiction, so the case would have to be dismissed. Readers of the blog are invited to join in this exploration.)
That would suck. Why does Roberts have to totally recuse himself? Can't he participate in the jurisdiction question and then recuse himself from the rest?