Tuesday, July 10, 2007

Interesting game theory on the Supreme Court

Linda Greenhouse, via Mike Rappaport:

It takes four votes to accept a case, and three members of the liberal bloc — Justices Stephen G. Breyer, David H. Souter and Ruth Bader Ginsburg — said at the time that they wanted to hear these cases. Notably absent from that group was Justice John Paul Stevens, who wrote the majority opinions for the court in 2004 and 2006 that upheld the detainees’ claims to a modicum of judicial process.

Instead of giving his vote to the three, Justice Stevens joined Justice Kennedy in a one-paragraph statement “respecting the denial.” It was “appropriate” to deny the appeals at this point, they said, because the detainees had not yet availed themselves of the appeal procedure provided by the Detainee Treatment Act of 2005. The court’s door remained open for the future, they hinted.

Since Justice Stevens had the power at that moment to cast a fourth vote for immediate review, he clearly had something else in mind by joining Justice Kennedy instead. The most plausible explanation is that this canny tactician and strategist, who had managed to win Justice Kennedy’s vote for his two earlier Guantánamo opinions, knew better than to risk losing that support by pushing his colleague too far, too fast. There was no point in granting a case to which Justice Kennedy was not yet ready to give favorable consideration.

So Justice Stevens waited, and events played into his hands. On June 22, days before the justices were to consider the “petition for rehearing” filed by the detainees’ lawyers, those lawyers filed a final brief that included a remarkable document, a description of how the “combatant status review tribunals” worked written by an Army officer, Lt. Col. Stephen Abraham, who had been a member of one. The statement, the detainees’ lawyers said in their brief, made it clear that the process was “an irremediable sham.”

What the justices made of the document is, of course, not publicly known. What is known is that granting a petition for rehearing takes not four votes, but five. Justice Stevens’s patience, it appears, was rewarded.

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