Monday
Escape
Since it happens rarely, I'm sure it'll get a bunch of attention, but this Kevin Drum post seems to be substantively wrong. That is, even if the court made a mistake in refusing to grant cert., it was a pretty small mistake (though I suppose a small mistake in a very important case is still bad), not the kind of thing I'd be tempted to call "a disgrace." I was actually just going to describe the post as totally wrong, but I've been enlightened. While it's true that the court couldn't provide any remedy at all for Padilla's present imprisonment because the issue in the case is whether his now discontinued military detention was constitutional, and that issue is now moot as to him, there is a remedy they could supply which would potentially aid him. I discovered this via Steve Vladeck's post on the issue, which mentions the potential remedy of a Munsingwear order, something I'd never heard of (I'll make use of the "only a second year law student" excuse here). This is apparently a remedy courts use when mootness of the original dispute denies a case the appellate review it would otherwise have the oppurtuity to recieve, in order to prevent the unreviewed decision from blocking a future case via res judicata, which is a potential harm to Padilla which the court would be able to remedy. There is a reasonable argument that the court should have issued that remedy, vacating the 4th Circuit opinion which permitted Padilla's indefinite detention.
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