HAMDI

First thoughts on Hamdi: 8 of the 9 Justices were unhappy with the expansive conception of Executive power outlined by the Bush administration. Only Justice Thomas sided with the administration on all relevant points.

Six Justices (O'Connor, Rehnquist, Kennedy, Breyer, Souter, and Ginsburg) agreed that Hamdi is entitled to judicial contestation of his designation as an enemy combatant, although Souter and Ginsburg see the government-friendly language in O'Connor's opinion as less than perfect. The remaining two, Scalia and Stevens, argued that the plurality's approach erodes liberty by avoiding clearly established rules against executive detention in the absense of a) a formal suspension of the writ of habeas corpus or b) criminal charges.

Five Justices (O'Connor, Rehnquist, Kennedy, Breyer, and Thomas) argued that the executive detention of enemy combatants is authorized: the first four thought that the congressional authorization of the use of force provided that authorization, and Thomas sees an inherent executive power to detain.* Scalia and Stevens reject executive detention of enemy combatants, and Souter and Ginsburg only seem to accept such detention in a "genuine emergency."

What happens to Hamdi himself -- and what sort of rules exist for future cases of this sort -- will now be heavily dependent on what kind of procedure is implemented below. Four members of the Court explicitly left the door open to military tribunals (see p. 31), and Thomas could probably be relied upon to provide a fifth vote. But the government is on notice that four members of the Court -- and possibly more, depending on the views of those who joined O'Connor's opinion -- are not going to be deferential.

For more, see here . For the opinion itself, see here (PDF file, via SCOTUSblog).

* MORE: Greg Goelzhauser has more, here. He also sent me a kind e-mail to point out that my characterization of Thomas's view is misleading, since Thomas follows the plurality in finding authority to detain in the congressional authorization of military force rather than in executive power as such. I think that Greg is right. Greg is also right that Breyer's vote is very interesting here, as Marty Lederman also notes, here.