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The Boumediene Oral Argument

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Unfortunately, other professional responsibilities have prevented me from reading the full transcripts yet, so I’ve only heard the highlights so far (I’ll have more when I read them in full.) Marty Lederman found both advocates brilliant (as did TAP’s Phoebe Connelly, who was in attendance) and seems optimistic about the result. Linda Greenhouse also says that the case will turn on how far Kennedy is willing to go (implying that he will join the judgment of the Court’s four more liberal members but may — in his typical fashion — try to narrow the reasoning.) I don’t differ from the conventional wisdom here; the most likely outcome seems to be a Kennedy opinion (or an opinion designed to attract Kennedy’s vote) holding that Congress doesn’t need to provide full access to ordinary federal courts to satisfy the habeas requirement but does need to supply better procedures than it did in its most recent bill. Orin Kerr, however, argues that because Kennedy was uncharacteristically silent it’s hard to make a prediction, and argues that the Court may just send the case back to the lower courts after making it clear that “that there is a Constitutional right to habeas jurisdiction for the Guantanamo detainees.” Dodging the key questions in that why wouldn’t surprise me either, although in light of the Court’s previous decision such a clarification seems unnecessary.

…As Roger points out in comments, audio of the oral argument is also available online.

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