Originalism and the Suspension Clause in DHS v. Thuraissigiam
A few moments ago, I blogged about Department of Homeland Security v. Thuraissigiam. This case turned on the scope of the Suspension Clause. Justice Alito wrote the majority opinion. Justice Sotomayor wrote the dissent. They disagree, vigorously, about the proper role history should play when interpreting the Suspension Clause.
The majority required the Thuraissigiam to identify a specific case that supports his claim for relief. A close analogy is not enough.
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. The dissent instead contends that “the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent,” and then discusses cases that are not even close to this one.
In dissent, Justice Sotomayor writes that Boumediene does not require such a close historical fit:
But as the Court implicitly acknowledges, its inquiry is impossible. The inquiry also runs headlong into precedent, which has never demanded the kind of precise factual match with pre-1789 case law that today’s Court demands.
For sure, Justice Kennedy’s framework in Boumediene was far more fluid. Justice Sotomayor writes:
But this Court has never rigidly demanded a one-to-one match between a habeas petition and a common-law habeas analog. Boumediene is even clearer that the Suspension Clause inquiry does not require a close (much less precise)
Article from Latest – Reason.com