Second Circuit Denies Rehearing En Banc in Turkmen; Is Supreme Court Next?

I’ve written before both here and at MSNBC about the Second Circuit’s immensely significant June 17 decision in Turkmen v. Hasty, which recognized a cause of action (and rejected a qualified immunity defense) over a class action arising out of the post-September 11 roundup and detention of certain groups of immigrants in and around New York. This morning, the full Second Circuit denied the government’s petition for rehearing en banc by an evenly divided 6-6 vote. Here’s the order. Here’s a concurrence from Judges Pooler and Wesley (who authored the panel decision). And here’s a lengthy opinion from all six dissenting judges (Jacobs, Cabranes, Raggi, Hall, Livingston, and Droney).

I’m sure there will be lots to say about these two opinions (once I have time to read them). For now, though, let me just say this: It seems entirely clear both that (1) the government will now seek certiorari; and (2) the Supreme Court will grant it. Not only is the government batting 1.000 in asking the Court to take terrorism-related questions since September 11, but one of those five grants came in Clapper v. Amnesty International, where the Second Circuit denied the government’s petition for rehearing by the same evenly-divided 6-6 vote.

Stay tuned… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).