The Roberts Court Slowly Inters Justice Kennedy’s Ephemeral “Jurisprudence of Doubt”

Two years ago, Justice Kennedy announced that he would retire from the Supreme Court. One of my earliest thoughts was, “I will never have to edit another Kennedy opinion for the casebook!” My follow-up thought was, “How long will I have to keep the Kennedy opinions in the casebook, once they are overruled or whittled away.” The whittling away has already begun. The Roberts Court is slowly, but surely interring Justice Kennedy’s ephemeral “jurisprudence of doubt.” Blue June has already buried at least three precedents with Justice Kennedy in the majority: Boumediene v. BushWhole Woman’s Health, and Footnote 3 of Trinity Lutheran.

Boumediene v. Bush

Boumediene suffered two major blows during Blue June. The first hit came in DHS v. Thuraissigiam (see here and here). Justice Alito’s majority required a very precise fit between history and the Petitioner’s claim.

Despite pages of rhetoric, the dissent is unable to cite a single pre-1789 habeas case in which a court ordered relief that was anything like what respondent seeks here.

Justice Kennedy’s 2008 majority opinion relied on history in a very fluid fashion. In dissent, Justice Sotomayor wrote that Boumediene “never demanded the kind of precise factual match with pre-1789 case law that today’s Court demands.” She’s right.

As I read Thuraissigiam, the Court has closed the door to any future expansion of the Suspension Clause jurisprudence, unless there is a close analogue to historical practice in 1789. Indeed, Mike Dorf finds an even greater limitation:

In both St. Cyr and Boumediene v. Bush, the Supreme Court said that the Suspension Clause protects a right to habeas that is “at the absolute minimum” as expansive as the scope of habeas in 1789, leaving open the possibility of further expansion. Justice Alito’s opinion (1) finds that the scope in 1789 does not benefit Thuraissigiam and (2) does not go beyond that minimum.

The Court has now rejected any possible “evolving” notion of habeas. The Great Writ is solidified in amber.

Boumediene took another hit in a sleeper case of the term, Agency for Int’l Development v. Alliance for Open Society. Justice Kavanaugh’s nine-page decision resolved a really important

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