an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Cross-posted at Scotusblog [Scotusblog is running a series on the jurisprudence of Justice John Paul Stevens]
Since Justice Stevens announced his intention to retire, discussions about what his departure will mean for the Court have regularly noted his military service in World War II. The justice enlisted the day before the Japanese bombed Pearl Harbor (and has joked about how the enemy responded to the news immediately). There is little doubt that a Court without substantial military experience among its justices will be missing an important perspective on the unique role the U.S. military plays in American policy and society. Judges are ideally made wiser from their range of life experiences; a broader range of experience among the justices seems likely only to enhance the Court’s collective wisdom. In that respect alone, Justice Stevens’ absence from the Court will leave a gap.
But Justice Stevens’ national security jurisprudence reflects a very particular kind of wisdom, drawn not only from his military service, but from a lifetime of attention to the persuasiveness of executive reason. As illustrated in a series of thoughtful histories in recent years (see here, here or here), the young John Stevens was likewise informed by his service immediately after the war as a law clerk at the Court to Justice Wiley Rutledge, who himself had struggled with the questions of executive power, individual rights, and national security that the Court has faced repeatedly in the years since September 11. Over his relatively short tenure on the Court, Rutledge seemed quickly to regret his early deference to a powerful President Roosevelt during World War II. With the majority in Hirabayashi v. United States (upholding a military curfew on Japanese-Americans living in certain “military areas” in California) and Korematsu v. United States (upholding the exclusion of Japanese-Americans from designated zones), Rutledge had reluctantly accepted the military assertion of wartime necessity. But the positions Rutledge took in these cases did not sit easily. As Rutledge later wrote to a colleague, “I have had more anguish over [Hirabayashi] than any I have decided, save possibly one death case” that he had encountered in the court of appeals. Indeed, Rutledge had written separately in concurrence in Hirabayashi, to emphasize that the Court’s acceptance of the military’s necessity justification here did not mean that such reasoning would invariably succeed, or that all such reasoning was beyond the power of the courts to review.
By In re Yamashita (upholding the military commission trial of a Japanese general), issued the year before Justice Stevens took up work at the Court, Rutledge was writing in dissent, rejecting the Government’s position “that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military,” in favor of the view that the U.S. Constitution, statutes and treaties here – as elsewhere – apply. Exigencies could arise, Rutledge understood, but particularly where the Government response imposed a burden on individual rights, it was within the power of the courts to check the reasons for the response, in security matters as anywhere else. The capacity to evaluate reasons was not the Commander-in-Chief’s alone. Thus, when Justice Stevens took up the challenge to the legality of President Bush’s military commission system at Guantanamo Bay sixty years later in Hamdan v. Rumsfeld, it was not surprising that it was Rutledge’s dissent the justice invoked.
It is certainly possible writing from some remove to overstate the impact Rutledge’s evolving views in the 1940s had on Justice Stevens’ thinking some sixty years later. Justice Stevens is, after all, also the author of Chevron v. Natural Resources Defense Council, the watershed administrative law decision typically understood to have cemented the importance of judicial deference to executive branch interpretations of statutory authority – a deference driven by the Court’s view of the Executive’s superior political accountability and expertise. Indeed, at first glance, it seems difficult to reconcile the Justice Stevens of Chevron – embracing judicial deference to the Executive – and the Justice Stevens of Hamdan – rejecting any notion of even modest deference to the Executive in interpreting the statutory Authorization for Use of Military Force and Uniform Code of Military Justice. One might argue the decisions are better read simply as a sign of the evolution of Justice Stevens’ own views during his long tenure on the bench.
This view seems to me to miss the value of what is in fact a rather consistent sensibility on the value of executive views. By the time Chevron came down, the Court had long recognized – as Justice Stevens reiterated in that decision – that executive views could help illuminate statutory meaning when the executive has special expertise in the face of a “regulatory scheme [that] is technical and complex,” when competing policy interests are at stake, and when it is clear the agency’s consideration of the matter had been “detailed and reasoned.” It was precisely the lack of such detail and reason in the President’s justification for pursuing military commissions at Guantanamo that troubled Justice Stevens in Hamdan. “Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case…. [T]he only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.” The Executive had presented no record or even detailed reason why it could not follow standard court-martial procedures. Indeed, as briefing surrounding the case had made evident, the Executive had largely excluded from the design process those lawyers in the military who were actually expert in how one might conduct a military commission trial. Expertise and record evidence could be valuable indeed. Far less valuable was the mere assertion of Executive authority.
Justice Stevens’ familiarity with the military and the important demands of national security perhaps made it possible for him to see what many have not – that there is nothing so extraordinary about the field of foreign relations per se that absolves the Executive of all need to be put to particular reason and compelling proof. It seems unlikely that the justice who takes his place will have Justice Stevens’ breadth of life experience in this regard. We will be fortunate if he or she nonetheless shares his insight.