Would Denial of Cert. in the Pending GTMO Habeas Cases Constitute the Surrender of Judicial Power?

Over at SCOTUSblog, Lyle Denniston takes note of the fact that the Supreme Court during last Friday’s conference had before it the cert. petitions for several GTMO-related cases.  The cases are all relatively important in their own way, to be sure, but I was struck by Lyle’s dramatic characterization of their overarching significance:

If it should turn out that the Court refuses to review any of the new cases — and that is certainly possible, especially if Justice Elena Kagan takes herself out of all four because of her prior role in detainee cases as U.S. Solicitor General — the practical result would be that control of the law of detention would shift significantly to the White House and to Congress, with a sharply diminished role for the judiciary. That would mark a basic change, since the Court, beginning in 2004, had issued a string of decisions overturning actions by the political branches that had narrowed, or flatly denied, the legal rights of Guantanamo detainees.

There are two claims here, both of which are unpersuasive to me. Claim one is that that denial of cert in these cases would shift “control of the law of detention” from the judiciary to the elected branches.  Now that’s obviously not true at a superficial level; denial of cert. won’t change the fact that the judiciary remains alone in fleshing out the substantive scope of detention authority, specifying the rules of process and evidence that govern the fact-finding process, and weighing the government’s evidence in particular cases.  But in fairness to Lyle, I believe from the context of his post that he really has in mind the notion that the judicial role will be unimportant going forward for two reasons that are at issue in the pending cases.  In his view, it seems, no one actually gets out of GTMO on the strength of a habeas victory, and the D.C. Circuit’s approach to the habeas litigation in any event has converted the habeas process into a rubber stamp for the executive.  I don’t think either of those claims holds up. First, the executive branch certainly has released GTMO detainees after losing in the habeas process and not obtaining reversal via appeal, and even Congress in its efforts to preclude GTMO transfers has left the door wide open for court-ordered releases.  The remaining Uighur petitioners stand as an exception (at least so long as  one accepts that they should have had the option to decline the resettlement option that the administration offered them), and an important one at that.  But that is an exception, not the rule.  Second, while it certainly is true (as Ben  has emphasized repeatedly on this blog) that the Circuit has taken a harder line than the district court on a number of issues in the habeas litigation—and there certainly is room to argue about the merits of those decisions – it simply does not follow that going forward no detainee can actually prevail on the merits or that the odds of prevailing have become so stacked as to make a mockery of the notion of habeas review. Lyle’s second claim rests on the premise that the Supreme Court since 2004 has repeatedly sided with detainees over the government in GTMO habeas litigation.  That premise is at best debatable.  The Court's 2004 decision in Hamdi (2004), after all, was at worst a split-decision and at best a substantial victory for the government.  And in any event we are talking about a "pattern" based on less than a decision per year, each dealing with distinct issues.  But even if we were speaking of a pattern of ten straight rulings against the government, what would that prove?  No one would claim that the Court is simply supposed to side with the detainees whenever they assert rights that are not recognized by the elected branches.