The Supreme Court turns Padilla away.

Gina Holland reports:

"In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again," Kennedy wrote... "That concern, however, can be addressed if the necessity arises."

Deborah Pearlstein, director of law and national security at Human Rights First, said: "This is a warning shot for the administration. It would be hard for the administration not to see it that way."

Pearlstein said the court may have given away the outcome of a second case arising from its strategy in the war on terror. Justices heard arguments last week in an appeal by a foreign terrorist suspect facing a military commission on war crimes charges at Guantanamo Bay, Cuba. Justices seemed skeptical of the government's arguments.

I'd like to see some more explanation of Pearlstein's theory. Is it just based on last week's argument, or is it an inference from today's vote? If the latter, I don't see it. Three justices wanted to hear the case: Souter, Ginsburg and Breyer. Stevens could have provided the fourth vote needed to grant certiorari, but he joined the Kennedy opinion. Gina Holland called that a "surprising... unusual alliance." Isn't the simplest explanation that Stevens is predicting what the Court would do with Padilla's case, perhaps based on what he already knows about the outcome of the Guantanamo case (Hamdan)?

Some commentary:

Orin Kerr: "Some will try to look for significant signs in the fact that both Stevens and Chief Justice Roberts joined Kennedy’s opinion, but I don’t know if that is justified."

Steve Vladek: "Justice Stevens?? It was his dissenting opinion two years ago that concluded that Padilla's case implicated 'nothing less than the essence of a free society.'"

Marty Lederman: "[E]vidently Justice Kennedy was not prepared to give either side of the Court the necessary assurance of his views on the merits; this might explain, for example, Justice Stevens's decision not to provide the fourth vote..."

Tung Yin delves into the technical question of whether the case is moot, because Padilla originally asked to be brought to trial and the government has proceeded to do exactly that.

I agree with Justice Ginsburg that the case falls within the "voluntary cessation" exception to the mootness doctrine. The exception is designed to prevent a party from creating mootness by changing its behavior, when it would be able to return to its old ways after it has extricated itself from the litigation. But the question in Padilla was whether to grant cert, and the Court has discretion.

As Kennedy writes: "Whatever the ultimate merits of the parties' mootness arguments, there are strong prudential considerations disfavoring the exercise of the Court's certiorari power." That is, we don't need to say whether we could hear the case if we wanted to, because we don't want to.

Under the circumstances in this case, the government is unlikely to go back to its old behavior. Kennedy makes a point at the end of saying that the courts will be monitoring the government and should act quickly if Padilla's status is changed again.

But why isn't he interested in judicial review of the government's treatment of Padilla in the past?

That Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical.

This is the standard reason judges give for requiring a real controversy. It's what you say after you've decided to avoid the case when you've got discretion to hear it. Compare Ginsburg's opinion:

This case, here for the second time, raises a question "of profound importance to the Nation," Rumsfeld v. Padilla, 542 U.S. 426, 455 (2004) (STEVENS, J., dissenting): Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an "enemy combatant"? It is a question the Court heard, and should have decided, two years ago. Ibid. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.

So take your pick: It's a very important question, so we should answer it; or it's a very important question, so we shouldn't answer it.