Boumediene's Quiet Theory: Access to Courts and the Separation of Powers

Abstract:     
At the core of Justice Kennedy's majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers, and that, as such, the writ remains relevant even when the individual rights of those who would seek its protections are unclear. And whereas some might view these passages as little more than rhetorical flourishes, it is difficult to understand the crux of Kennedy's analysis - of why the review available to the Guantanamo detainees failed to provide an adequate alternative to habeas corpus - without understanding the significance of his separation-of-powers discussion. At least where habeas corpus is concerned, it seems clear from Boumediene that the purpose of judicial review, in Justice 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.

In this article, I take on this quiet theory behind Kennedy's opinion and ask whether it might have applications beyond the unique context of habeas corpus, especially with regard to the more general constitutional right of access to the courts. As I argue, there is actually much to gain from re-conceptualizing access to courts as being as much about protecting the courts as it is about vindicating the individual rights of litigants, a theme largely reflected (although since forgotten) in the judicial decisions giving rise to modern access-to-courts jurisprudence. Thus, going forward, Boumediene might do more than just answer the circumstance-specific question about habeas corpus rights for non-citizens detained as enemy combatants; it might provide the starting point for a new theory of access to the federal courts in particular that could allow us to rethink a number of tenets of federal courts doctrine.

Accepted Paper Series