Most critiques of the Supreme Court's June 2008 decision in Boumediene v. Bush (including Justice Scalia's dissent in the same) have at their core the argument that Justice Kennedy's majority opinion is inconsistent with prior precedent, specifically the Supreme Court's 1950 decision in Johnson v. Eisentrager. A closer read of Eisentrager, though, reveals a surprisingly unclear opinion by Justice Jackson, that seems to go out of its way to reach various issues on the merits even after suggesting that the federal courts lacked jurisdiction over habeas petitions filed by 22 Germans convicted of war crimes by a U.S. military tribunal in China. Put another way, it is hard to understand the scope of the rule that the Eisentrager majority thought it was enunciating, and therefore the extent to which it should have also applied in the Guantanamo cases.
This problem is not unique to Eisentrager, though. In the Court's June 2008 decision in Munaf v. Geren, it also brushed aside a post-World War II precedent -- the 1948 decision in Hirota v. MacArthur, again because it was not clear exactly which facts the earlier jurisdiction-precluding decision relied upon. As I explore in this essay -- part of the Tulsa Law Review's annual Supreme Court review -- these decisions are emblematic of a judicial methodology that is no longer in vogue, thanks to the Supreme Court's 1998 decision in Steel Co. v. Citizens for a Better Environment. After Steel Co., federal courts can no longer reach issues over which they lack jurisdiction, and so are far more careful to resolve jurisdictional questions at the outset, before moving on (where possible) to the merits.
But what effect does Steel Co. have on prior precedent, where the Court's decision leaves unclear how much the merits actually mattered? As I explore in this essay, Steel Co. may itself compel that contemporary courts narrowly construe jurisdiction-precluding rules in cases like Eisentrager and Hirota, on the assumption that those courts would not have analyzed questions the answers to which could not have mattered. Reasonable people may disagree about whether Boumediene and Munaf were rightly decided, but the critical point for present purposes is that both were decided on jurisprudential clean slates
Vladeck, Stephen I. “The Problem of Jurisdictional Non-Precedent.” Tulsa Law Review 44 (2009): 587-615.