Next Up at the Court

The court just granted cert in a case in which plaintiff—a detainee who had been held here in the United States in pretrial detention shortly after the 9/11 attacks—is seeking damages against former Attorney General John Ashcroft and FBI Director Robert Mueller (among others) based on claims that his treatment in detention violated his constitutional rights. The government’s petition for review in







Guess Justice Kennedy wasn’t kidding when he suggested in Boumediene a few days ago that the court might have to get more engaged in deciding “war on terror”-related cases.

Mr. Iqbal alleged that he was beaten and denied medical care, deprived of food (losing 40 pounds during his detention), subjected to extreme hot and cold temperatures, left in solitary confinement, often shackled, repeatedly subjected to strip and body-cavity searches, and subjected to racial ethnic and religious discrimination of various kinds. The 2nd Circuit rejected the defendants’ motion to dismiss the case, and the Justice Department sought review.

On its face, the grant of cert doesn’t look good for Mr. Iqbal (who has since been deported to his native Pakistan). It takes only four to grant cert, and I’m going out on a limb in guessing that Scalia, Thomas, Alito, and Roberts aren’t huge fans of the Bivens doctrine (affording individuals a right to sue government officials who violate the Constitution). Then there’s the conventional wisdom that the court doesn’t grant cert to affirm. The 2nd Circuit allowed the case to go forward to permit limited discovery in the case, including the possible deposition of Mssrs. Ashcroft and Mueller on post-9/11 decisions about detainee treatment. If the court had no problem with that outcome, it could easily have waited until the case reached the merits before weighing in. But a lot of the justices have expressed concern about the burden of such discovery on government officials.

Apart from wondering where Justice Kennedy sits on these issues, it seems like a key question is whether the court will stick with its own precedent and recognize that it has to address the substantive validity of Mr. Iqbal’s constitutional claims—were his Fifth Amendment rights violated?—before determining whether those rights were “clearly established” enough for a reasonable officer to have known better. (If the law wasn’t clear enough for officials to have known better, the officials can invoke “qualified immunity” and stop the suit in its tracks.) Whatever the court decides about the qualified immunity defense, a holding by the Supreme Court on the merits that the Constitution bars this kind of treatment of detainees would be huge (and welcome) news.

And under it all there’ll be the great question of whether Justice Scalia should recuse himself from consideration. He did, after all, just recently announce to the international press that he didn’t particularly think torture amounted to punishment prohibited by the Eighth Amendment and that the constitutionality of detainee abuse depended on the circumstances (like, say, the days just after 9/11?). Here’s betting there’s a motion for recusal—and that Scalia stays in.