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Supreme Court Vacates Fourth Circuit Al-Marri Case and Remands With Order To Dismiss:
Seems like the right move to me, and certainly not unexpected. Via SCOTUSblog, here is the order:
The application of the Acting Solicitor General respecting the custody and transfer of petitioner, seeking to release petitioner from military custody and transfer him to the custody of the Attorney General, presented to The Chief Justice and by him referred to the Court is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss the appeal as moot. See United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
This means is that the 4th Circuit's splintered opinion in Al-Marri will be wiped off the books, and if the issue ever comes up again there won't be any controlling precedent either way.
Dave3L (mail) (www):
We just read the 4th Circuit opinion a few weeks ago for class. Which presents any interesting question: will it be tested on the exam?
3.6.2009 2:27pm
matthewccr:
talk about capable of repetition but evading review.
3.6.2009 2:47pm
OrinKerr:
talk about capable of repetition but evading review.

You can talk about it, but where would the talk lead?
3.6.2009 3:05pm
Apodaca:
capable of repetition but evading review

Am I wrong to think that petitioner placed greater reliance on the voluntary cessation doctrine?
3.6.2009 3:34pm
Just an Observer:
It is interesting that the court did not emulate its pattern from Padilla v Hanft, and dismiss the cert without vacating the case.

I'm not sure what that shows (other than the fact that I was half wrong in my own prediction).

One factor might be that Al-Marri's ACLU lawyers, in their own brief, asked for this result in the event that the court agreed with DOJ to moot the case, and DOJ's own motion also included vacatur as an alternative.

Also -- unlike the Padilla case where three justices took the unusual step of communicating a careful message about what might happen in the event of recurrence -- the court left no such clues this time.

The fact that the Fourth Circuit precedent will go away offers limited comfort because the Padilla precedent remains there, and he is a citizen.
3.6.2009 3:50pm
DrGrishka (mail):
Orin,

I am no expert on Munsingwear, but isn't vacatur on the mootness ground different from reversal or vacatur on teh merits? In other words, doesn't the case retain precedential value even though it eventually became moot?
3.6.2009 3:55pm
D.A.:
Dr.
I don't think it was vacated on mootness grounds. The judgment below was vacated independently, and the appeal was ordered dismissed because there is (now) no judgment to appeal. Once the judgment is vacated, there is no precedent upon which to rely.
3.6.2009 4:10pm
DrGrishka (mail):
D.A.,

I dont think that the vacatur was on grounds other than mootness. They did cite Munsingwear. But not bein an expert on the doctrine, I would like to know what the implication is.
3.6.2009 4:41pm
Jack Black (mail):
Grishka,

The Court was probably persuaded that it lacked Article III jurisdiction because the case would be purely hypothetical, and the Government said vacatur may have been proper so there was no reason to grant cert to discuss the issue (of vacatur itself).
3.6.2009 4:49pm
Carl g:
I am still a little confused by this. If a normal case went to the fourth circuit, was decided, and appealed to the Supreme Court, but then settled, the fourth crcuit opinion would still be binding precedent. Why is this situation any different? Why would the fourth circuit opinion be "wiped off the books"?
3.6.2009 4:55pm
Jack Black (mail):
Why would the fourth circuit opinion be "wiped off the books"?

So there is no reason to hear the case and decide the President lacks this power.
3.6.2009 5:00pm

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