This Essay takes up the Court’s less-heralded second holding in Boumediene v. Bush—that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this aspect of the opinion has gone largely unnoticed, it is inconsistent with the Madisonian Compromise—the standard view that the Constitution does not require Congress to create or to vest jurisdiction in any federal court except the Supreme Court. In fact, it appears that the Court adopted, sub silentio, the position famously advanced by Justice Story in 1816 that the Constitution requires Congress to vest the lower federal courts with jurisdiction to hear executive-detention habeas corpus cases. In considering alternatives to this bold break with long-settled constitutional doctrine, this Essay examines newly uncovered opinions from Supreme Court Justices to determine whether Justices acting in chambers remain a viable habeas forum of last resort post-Boumediene, why the Boumediene Court failed to address this issue directly, and, finally, the degree to which the need for an independent finder of fact is well grounded in constitutional doctrine. This Essay concludes that Boumediene’s rejection of the Madisonian Compromise, rather than its decision with respect to the scope of the habeas writ, will come to be its longest-lived legacy for federal courts law.
LawReview
