Cass Sunstein Replies
Guest Blogger
Cass Sunstein
Many thanks to Marty for continuing the discussion. By way of concluding my remarks at this stage, just three brief thoughts:
1. It is interesting to ask what the division on the Court would have been in
Hamdan if the President had been named Clinton rather than Bush. Of course it's not clear that the division would have changed, but it might have been. (For supportive evidence, showing a strong effect of the President's party identification on judicial review of executive action, see
this paper by Thomas Miles and me, appearing soon in the University of Chicago Law Review, entitled
Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron.)
2. On high-profile legal issues of this kind, there is a risk of group polarization, in which like-minded people (liberal or conservative) stir one another into a state of excessive confidence. Consider the (odd?) fact that before
Hamdan, (almost all?) legally informed observers who didn't vote for President Bush tended to believe that the NSA program was unlawful -- whereas legally informed observers who did vote for President Bush tended to be far more sympathetic to the President's legal claims. Of course there are exceptions.
Note in this regard that in
Hamdan itself, the majority and the dissent were divided on at least seven major questions, all of them pretty technical. Offhand I can't think of a time, in the Court's entire history, in which the Justices split, in a single case, on so many questions;
Hamdan might in this regard be the all-time champion.
3. The real question, of course, is the effect of
Hamdan. It will be interesting to see if executive branch lawyers can produce a plausible argument, post-
Hamdan, in favor of the NSA program. In light of Justice Stevens' reasoning, the defense of the program is greatly weakened. Justice Thomas' dissenting opinion could easily be adapted in favor of the program, but of course skeptics could contend that military commissions are easier to defend -- and after all, Justice Thomas was dissenting.
Posted
10:33 PM
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