As promised in my inaugural post, here is the first of the in-depth examinations of the cases only briefly mentioned there. I have decided to start with United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), for two reasons: first, it will likely play a large role in any commentary on recently decided cases that I review; and second, it is the starting point for many of the theoretical questions I intend to pose and discuss. As such, having a familiarity with the case will be useful to readers.
The holding in Verdugo-Urquidez was 6-3, but the Court split 4-1-1-3 in the rationale, with both Justice Kennedy and Justice Stevens concurring for different reasons. [EDIT: Justice Kennedy did formally join the majority - as noted below, however, his concurrence rejects much of Rehnquist's rationale]. As I noted in my earlier post, there is some dispute over whether the Chief Justice’s opinion is a majority or a plurality, with both lower courts and scholars split on the issue. (For the record, the reporter refers to Rehnquist’s opinion as the opinion of the Court). On the one hand, Justice Kennedy stated in his concurrence that his views did not differ materially from the Chief’s opinion. On the other, the rationale relied upon by Kennedy is starkly different. Regardless, aspects of both opinions have been cited and relied upon by lower courts.Read More