Little known and seldom invoked: the Supreme Court can hear an initial petition for habeas corpus, not just review what another court has done on appeal.
They haven’t granted one since 1925, 90 years ago. But it looks like they’re going to grant this one.
In the first place, the government is largely in agreement with the Petitioner, disagreeing only that the SCOTUS’ very strict criteria for granting an “original” habeas corpus petition have been met. Put another way, the government’s “opposition” is halfhearted, and being the most favored litigant this will surely not go unnoticed.
Second, there’s this rather good argument being made by amicus law professors that if they don’t finally grant one where it appears there is no alternative, the whole AEDPA might come under legitimate constitutional attack. Most SCOTUS Justices love the AEDPA.
And lastly, what’s the harm? The government agrees that the Petitioner should be released, just thinks there’s no mechanism for him to obtain his release as a matter of right.
Hmmm. That last one could be problematic.
In any case, a very interesting development for those of us who follow federal habeas corpus law.