{"id":541687,"date":"2010-04-23T07:42:24","date_gmt":"2010-04-23T11:42:24","guid":{"rendered":"http:\/\/opiniojuris.org\/2010\/04\/23\/replacing-stevens-on-security\/"},"modified":"2010-04-23T07:42:24","modified_gmt":"2010-04-23T11:42:24","slug":"replacing-stevens-on-security","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/541687","title":{"rendered":"Replacing Stevens on Security"},"content":{"rendered":"

by Deborah Pearlstein <\/em><\/strong><\/p>\n

Cross-posted on Balkinization <\/a>and Scotusblog<\/a><\/p>\n

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\u2019s collective wisdom. In that respect alone, Justice Stevens\u2019 absence from the Court will leave a gap. <\/p>\n

But Justice Stevens\u2019 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<\/a>, here <\/a>or here<\/a>), 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 <\/em>(upholding a military curfew on Japanese-Americans living in certain \u201cmilitary areas\u201d in California) and Korematsu v. United States <\/em>(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, \u201cI have had more anguish over [Hirabayashi<\/em>] than any I have decided, save possibly one death case\u201d that he had encountered in the court of appeals. Indeed, Rutledge had written separately in concurrence in Hirabayashi<\/em>, to emphasize that the Court\u2019s acceptance of the military\u2019s 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. <\/p>\n

By In re Yamashita <\/em>(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\u2019s position \u201cthat 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,\u201d in favor of the view that the U.S. Constitution, statutes and treaties here \u2013 as elsewhere \u2013 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\u2019s alone. Thus, when Justice Stevens took up the challenge to the legality of President Bush\u2019s military commission system at Guantanamo Bay 60 years later in Hamdan v. Rumsfeld<\/em>, it was not surprising that it was Rutledge\u2019s dissent the justice invoked. <\/p>\n

It is certainly possible writing from some remove to overstate the impact Rutledge\u2019s evolving views in the 1940\u2019s had on Justice Stevens\u2019 thinking some 60 years later. Justice Stevens is, after all, also the author of Chevron v. Natural Resources Defense Council<\/em>, the watershed administrative law decision typically understood to have cemented the importance of judicial deference to executive branch interpretations of statutory authority \u2013 a deference driven by the Court\u2019s view of the Executive\u2019s superior political accountability and expertise. Indeed, at first glance, it seems difficult to reconcile the Justice Stevens of Chevron <\/em>\u2013 embracing judicial deference to the Executive \u2013 and the Justice Stevens of Hamdan <\/em>\u2013 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\u2019 own views during his long tenure on the bench.<\/p>\n

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 <\/em>came down, the Court had long recognized \u2013 as Justice Stevens reiterated in that decision \u2013 that executive views could help illuminate statutory meaning when the executive has special expertise in the face of a \u201cregulatory scheme [that] is technical and complex,\u201d when competing policy interests are at stake, and when it is clear the agency\u2019s consideration of the matter had been \u201cdetailed and reasoned.\u201d It was precisely the lack of such detail and reason in the President\u2019s justification for pursuing military commissions at Guantanamo that troubled Justice Stevens in Hamdan<\/em>. \u201cNothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case\u2026. [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.\u201d 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.<\/p>\n

Justice Stevens\u2019 familiarity with the military and the important demands of national security perhaps made it possible for him to see what many have not \u2013 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\u2019 breadth of life experience in this regard. We will be fortunate if he or she nonetheless shares his insight.<\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

by Deborah Pearlstein Cross-posted on Balkinization and Scotusblog 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 […]<\/p>\n","protected":false},"author":4905,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-541687","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/541687","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4905"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=541687"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/541687\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=541687"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=541687"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=541687"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}