The Supreme Court's Refusal to Hear the Guantánamo Detainee Appeals is discussed here. In part, Justice Stevens' move not to grant cert with Breyer and the other two dissenters is surely a realization that you need five -- aka Kennedy -- to win. So he joined with Kennedy to wait, but tossed in a hint/warning that their patience is thin. Justice Breyer was right all the same:
First, the "province” of the Great Writ, "shaped to guarantee the most fundamental of all rights, is to provide an effective and speedy instrument by which judicial inquiry may be had into the legality of the detention of a person."
Yet, petitioners have been held for more than five years. They have not obtained judicial review of their habeas claims. If petitioners are right about the law, immediate review may avoid an additional year or more of imprisonment. If they are wrong, our review is nevertheless appropriate to help establish the boundaries of the constitutional provision for the writ of habeas corpus.
The dissent from denial also cited an accelerated case during WWII involving German saboteurs on our trial:
In view of the public importance of the questions raised by [the] petitions and of the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safe-guards of civil liberty, and because in our opinion the public interest required that we consider and decide those questions without any avoidable delay.
The steel mill and Pentagon Papers cases -- both taken without the usual long delays -- were also cited. Particularly galling, it is a decent bet that when they do finally take the case, the lower ruling will be overruled at least in part. But, until then, they continue to linger, their lawyers perhaps trying to find a David Hicks-like out that leaves something to be desired. Meanwhile, the justices do their jobs, when they get around to it.
Justice delayed, justice denied.