in light of today's "stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism", kevin drum wonders whether the bush administration will decide not to appeal the case to the supreme court to avoid an adverse ruling.
it is true that in the past the administration has gone out of its way to prevent supreme court review of its detention of people inside the u.s. (e.g.). but that was before bush got to appoint two supreme court justices. bush's appointments replaced two of the justices that ruled against the administration in the hamdi case. alito in particular is known to be a fan of the unitary executive theory (aka the "checks and balances? checks and balances? we don't need no stinkin' balances!" theory).
so while the bush administration has worked hard in the past to avoid a supreme court ruling, its calculation of what is likely to happen in such an appeal may now have changed. with the court's new mix of justices, the administration's lawyers might decide that the odds are now on their side and try an appeal. and, unfortunately, they might be right.
