Analyze the Key Points in the Opinion
- Make a list with two columns, listing in the first column the key point made by each of the justices in the majority and concurring opinions.
- In the second column, make a matching list of the key point made by the justices writing the dissenting opinions to counter the majority's arguments.
Understand the Separation of Powers
- Explain, step by step, how the three branches of government interacted throughout this process.
- Make a time line of these interactions, starting with September 11, 2001.
- Explain how the process of checks and balances worked or did not work.
Dissect the Relationship of the Judicial Branch to the Executive and Legislative Branches
- In wartime, to what extent should the Judicial Branch defer to the judgment of the military and the rest of the Executive Branch (President as Commander in Chief)?
- Justice Breyer wrote a one-page concurrence in Hamdan v. Rumsfeld. How did he recommend that the three branches interact in a case like this one?
Identify Remedies
- Reading the majority opinion and concurrences, what remedy can you come up with that summarizes the justices' positions?
- Reading the dissents and concurrences, what remedy can you come up with that summarize the justices' positions?
- What remedy can you come up with on your own?
Step Back
- Review your analysis, and describe how the separation of powers played out in this situation. It may help to make a diagram. Addressing each branch of government, is there anything that could have or should have been done differently to ensure the separation of powers?
- Based on your analysis, how did the system of checks and balances work in this situation? Addressing each branch of government, is there anything that could have/should have been done differently by any of the branches of government to ensure that the system of checks and balances worked correctly?
Hypothetical Issues
- The dissenting Justices pointed out that the Courts do not traditionally rule on hypothetical issues. They wait to act until a wrong has been committed and a case has been brought before them. What did the dissenting Justices identify as potentially "hypothetical" issues raised by Hamdan?
- How did the majority respond to that position?
Retroactivity
- Do you think that the DTA should be applied retroactively? When would it be fair to do so? When would it be unfair to do so?
- If a law is silent as to when its application begins, what factors should be considered when deciding that question?
- According to the Constitution and case law, are there any types of laws that cannot be applied retroactively? Do you think there are any laws that should not be applied retroactively?