Vladeck on Boumediene and Access to the Courts

Professor Stephen Vladeck (AU/WCL) recently posted his excellent article, Boumediene's Quiet Theory: Access to Courts and the Separation of Powers, on ssrn; it's also forthcoming in the Notre Dame Law Review.  This is a thoughtful and engaging piece, characteristic of Vladeck's other related work; I highly recommend it.

Vladeck's article is about Boumediene v. Bush, a case that left plenty of unanswered questions about overseas habeas for aliens, extraterritorial application of other constitutional provisions, and the status of detainees' habeas claims based on the conditions (and not just the fact) of executive detention--issues that are now working their way through the federal courts and getting (at least) their fair share of scholarly attention.

Vladeck, refreshingly, takes Boumedienein a different direction.  Rather than focusing on these plainly open questions, Vladeck addresses a subtler point in the case: Justice Kennedy's invocation of separation-of-powers principles that drive the Court's ruling on that ultimate of all privileges that protects access to courts, habeas corpus.  Here's Vladeck's turn:

In this respect, Justice Kennedy's separation-of-powers focus is reminiscent less of his opinions in the other war-on-terrorism cases than of his majority opinion in Legal Services Corp. v. Velazquez, where the Court struck down part of a federal statute that prohibited legal aid lawyers who received federal funding from challenging the validity of existing welfare laws.  Although the VelazquezCourt concluded that the spending restriction violated the First Amendment, Justice Kennedy emphasized that such analysis was bolstereed by the "severe impairment of the judicial function" such a restriction might otherwise effect.  In both cases, Justice Kennedy thereby suggested that the injury the statute inflicted upon the role of the courts was at least relevant, if not central, to the constitutional analysis. . . .

At least where habeas corpus is concerned, the purpose of judicial review, in Kennedy's view, appears to be as much about preserving the role of the courts as it is about protecting the individual rights of the litigants.

This separation-of-powers approach is inconsistent with the modern, individual rights approach to access questions.  But Vladeck shows, through exhaustive analysis, that in adopting a separation-of-powers approach Kennedy resuscitated a motivating principle of the Court's earlier access cases:

With respect to the constitutional right of access to the courts, the early cases, especially Ex parte Hull, "appear[] to have been motivated more by notions of federalism and the power of the federal courts than [by] the rights of prisoners." . . .

From Brandeis's perspective, it was the protection of judicial supremacy--of the courts' prerogative to "say what the law is"--that required the protection of a litigant's substantive access to the courts, and not the other way around.  Thus, at their origins, judicial recognition of both physical and substantive access claims was rationalized at least largely by the courts' need to protect themselves.

So what does this mean for access in the wake of Boumediene?  Two things, argues Vladeck:

First, Boumediene's separation-of-powers approach will put on "sounder footing . . . the notion that the denial of access raises constitutional concerns whenever it interferes with judicial resolution of viable claims, whether or not the claim ultimately proves meritorious."  Boumediene itself is a clear example of this:  Kennedy "disaggregatedthe access-to-courts question from theadequacy-of-the-process question, suggesting that it was neither necessary nor sufficient, in resolving whether the [CSRTs] provide an adequate substitute to habeas corpus, to ask whether their procedures comported with due process."  If the Court ruled otherwise--linking the constitutional question to the merits--"it could only have answered the Suspension Clause question on a case-by-case basis."  The upshot:   The political branches have less leeway to restrict access; and "the courts' 'jurisdiction to determine their jurisdiction' may be inadequate in close cases where resolving the merits of the preclusion of review requires resolution of complicated and necessarily case-specific questions of fact."

Moreover, the separation-of-powers approach may well result in a right to Article III federal judicial review in non-habeas cases, even where the individual rights approach would not support it, if Congress were ever to give state courts or administrative agencies final word on questions of federal law.  Vladeck:

More generally, it might be impossible to understand the current structure of our judicial system, and the limits on how it might be altered, without appreciating the separation of powers concerns that arise when tribunals other than the Article III courts are in a position to have the final say--and when access to the Article III courts is denied.

I highly recommend this very thoughtful piece.

SDS