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No opinion in Heller today
Gitmo detainees and four other cases. With 22 cases going in, that leaves 17 to be decided. Next day for opinion releases will be Monday.
But I do like it when the Court goes on a historical bent (and not just because that makes odds of a Heller win higher). Justice Kennedy's opinion for the Court in one of the Gitmo cases is great on this. It traces the history of habeas corpus, and here's a short sample:
"The Government argues, in turn, that Guantanamo is
more closely analogous to Scotland and Hanover, territories
that were not part of England but nonetheless controlled
by the English monarch (in his separate capacities
as King of Scotland and Elector of Hanover). See Cowle, 2
Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be
cited for the proposition that, at the time of the founding,
English courts lacked the “power” to issue the writ to
Scotland and Hanover, territories Lord Mansfield referred
to as “foreign.” Ibid. But what matters for our purposes is
why common-law courts lacked this power. Given the
English Crown’s delicate and complicated relationships
with Scotland and Hanover in the 1700’s, we cannot disregard
the possibility that the common-law courts’ refusal to
issue the writ to these places was motivated not by formal
legal constructs but by what we would think of as prudential
concerns. This appears to have been the case with
regard to other British territories where the writ did not
run. See 2 R. Chambers, A Course of Lectures on English
Law 1767–1773, p. 8 (T. Curley ed. 1986)"
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