THE AGE OF DEFERENCE: THE SUPREME COURT, NATIONAL SECURITY, AND THE CONSTITUTIONAL ORDER

Vol. 27 No. 5 (June 2017) pp. 76-79

THE AGE OF DEFERENCE: THE SUPREME COURT, NATIONAL SECURITY, AND THE CONSTITUTIONAL ORDER, by David Rudenstine. New York: Oxford University Press, 2016. 344pp. Hardcover $29.95. ISBN: 9780199381487.

Reviewed by Tobias T. Gibson, Department of Political Science, Westminster College (MO). Email: tobias.gibson@westminster-mo.edu.

David Rudenstine, the Sheldon H. Solow Professor of Law at Cardozo Law School, offers a rebuke of the Supreme Court and its continued and increasing deference to the executive branch in matters related to national security. Rudenstine’s view, made clear by the title of the book, continues unabated throughout the work.

Rudenstine opens the book with the premise that “…the Supreme Court—has generally betrayed for over seven decades its responsibilities to hold the executive meaningfully accountable in cases the executive claims implicates national security” (p. 3). In some ways, this thesis is surprising. Readers will no doubt recall Supreme Court cases such as YOUNGSTOWN SHEET & TUBE V. SAWYER, which ended the Truman administration’s seizure of the nation’s steel industry during the Korean War and more recent cases including HAMDI and BOUMEDIENE, both of which limited the executive branch’s unqualified holding of detainees during the War on Terror. And, the judiciary—if not the Supreme Court—has limited the reach President Donald Trump’s consecutive executive orders attempting to limit travel from MENA (Middle East and African Nations), Muslim majority nations. Several federal courts, most recently the Fourth Circuit Court of Appeals, in INTERNATIONAL REFUGEE ASSISTANCE PROJECT V. TRUMP, held that “Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation” (p. 12).

Yet, through diligent research and convincing argument, Rudenstine strongly supports his thesis. THE AGE OF DEFERENCE is organized into four sections, with Part One, “From Isolationism to Globalism” setting the stage for an increasingly weak Supreme Court in the face of an executive leading the free world in the wake of World War II. In Chapter One, Rudenstine notes that cases such as YOUNGSTOWN are, indeed, important. However, he avers against seeing these cases as evidence of a strong, empowered Court, and instead suggests that the “general disposition of the Supreme Court” (p. 11) has been prostration to the executive branch. He further suggests that because the rise of executive power has been due to the rise of the American influence on the world, judicial deference “will continue until the members of the Supreme Court conclude that the harms inflicted by undue deference in national security cases exceed whatever national interests the deference may be thought to be advancing” (pp. 15-16).

Chapter Two, “The Ingrained Narrative,” explains the popular view that the Supreme Court enables the executive branch in times of war and national emergency, but reasserts itself in times of peace, and utilizes the infamous KOREMATSU decision as to explain this narrative. However, Rudenstine also posits that this narrative is lacking in several dimensions—and this is the subject of the third chapter, in which he offers “A Second Look” at the dominant narrative. It is in the third chapter that the foundation of Rudenstine’s argument begins to solidify. Using cases from the Civil War and World War I eras, Rudenstine notes much of what observers of the “Strategic Model” of judicial decision making (Epstein and Knight, 1997; Bergara, Richman and Spiller, 2003) have noted for years: mainly that presidents “may refuse to comply with an order” and that Congress can “use its authority to retaliate against” the Supreme Court (p. 41). Despite the “remarkable timidity” of the Court in these eras, he argues in Chapter Four that the number of [*77] cases related to questions of national security increased dramatically in the wake of World War II, and that judicial deference also increased dramatically. Importantly, here Rudenstine argues that the High Court not only will decide cases in support of the executive branch, but has created “technical legal doctrines of deference” allowing the Court to dismiss many national security cases without ruling on the legal merits of those cases (p. 65).

Part Two, “Judicial Secrecy” allows Rudenstine to develop the empirical argument of his thesis. The first chapter of this section, “Looking Through a Keyhole,” chronicles the nearly-five-decades-long attempt of a family to discover the facts related to a crash of an Air Force B-29 in 1948. The Supreme Court, in UNITED STATES V. REYNOLDS (1953) announced “the first and central pillar of the judicial deference” (p.72)—that of the state secrets privilege—central to the theme of this book, despite the lack of national security implications of the case (p. 73). Nearly fifty years later, thanks to the magic of the internet, the families of some of the military and civilians killed in the crash again sought judicial review, but ran into “a judicially constructed brick wall” (p. 78), constructed around judicial deference of the executive branch that began, somewhat ironically, with the original attempt to seek answers for the loss of their family members.

The remainder of Part Two is constructed around three chapters noting the secrecy of three portions of the judicial “oversight” mechanisms in the national security policy space: secret evidence, secret law and a secret court. Evidence is secret, according to Rudenstine, because the Supreme Court has built a jurisprudence upon the REYNOLDS decision that has expanded deference to the executive well beyond the state secrets privilege. The Court has expanded the state secrets privilege when the possibility, not merely the inevitability, of the inadvertent release of classified information is raised (p. 92), due the possibility—seemingly no matter how small—that a release of information would undermine the security of the nation (p. 93). Utilizing the well-documented targeted killing of American citizen Anwar al-Awlaki as the foundation of Chapter Seven, Rudenstine notes that, increasingly, law is secret because it is made by executive branch lawyers behind closed doors. And in Chapter Eight, the FISA court willingness to “rubber stamp” (p. 140) surveillance warrants leads to the observation that “the FISA court … abdicated its judicial independence by being unduly deferential to the executive” (p. 140).

In Part Three, “Judicial Deference,” Rudenstine uses some familiar examples of the judicial deference. The section opens with a look at the National Security Agency’s post-9/11 surveillance, and the Supreme Court’s decision in CLAPPER V. AMNESTY INTERNATIONAL (2013) that there was a lack of standing, meaning the Court did not decide on the constitutionality of the wide spread surveillance program. Rudenstine takes aim at the Gitmo detention cases decided early in the Global War on Terror. Of particular note is his view of BOUMEDIENE (2008), in which the High Bench decided that, even with Congress’s repeal of the jurisdiction to hear detainee habeas cases, that the detainees interred prior to the repeal still had habeas appeal rights. Noting that this case led to a deafening amount of both praise and scorn—Rudenstine observes, for example, that Ronald Dworkin called BOUMEDIENE “one of the most important Supreme Court decisions in recent years” (p. 252)—that the decision led to the release of zero detainees (p. 252).

In some ways, Rudenstine joins scholarship, which notes that the federal judiciary is deferential to the president and other executive officers (Epstein, et al., 2005; but see Garrison, 2013, who offers and important counter-position.) Similarly, Rudenstine’s look to the Obama administration’s defense of its targeted killing of al-Awalki and taking the FISC (Foreign Intelligence Surveillance Court) to task for its secrecy do not break much new ground (see prior work on Awlaki and drone use more generally in Brooks (2014 A and B) and Mazetti (2013, 299-321); and on secret law by Goitein (2016) and Serwer (2013)). [*78]

Yet, the implications of this work are profound. Rudenstine calls into question not only the ability, but the willingness, of the Supreme Court to serve as an oversight mechanism of the executive branch. Rudenstine’s conclusions found in Part Four, “Between Abdication and Usurpation” are important for scholars of the Supreme Court, national security policy, civil liberties and public policy to note. Rudenstine cautions that “The Consequences of Deference” include a purposefully designed judicial deference that allows “… the National Security State an insulating dynamic that permits, if not allows, public officials to violate the law with impunity” (p. 283). He continues by suggesting that the collective judicial “Mind of Deference,” there is little evidence to suggest that judges are incapable of deciding complex, national security cases. Indeed, in perhaps the single most profound statement in the book, Rudenstine argues that “The Supreme Court is the least dangerous of the three coequal branches, but it does itself and the nation a profound disservice when it allows its weakness to be a reason to be weak” (p. 299).

To conclude, THE AGE OF DEFERENCE is an important new offering. It is not important because it offers a vast reservoir of new information, but because of the force of its conclusion based upon its information. Rudenstine pulls no punches in issuing a call for the Supreme Court to rethink its role in national security policy. Indeed, he states with great clarity that despite the fact that the current membership of the High Bench is unlikely to alter the current deferential mindset, “…the Court’s membership will change in time, and the purpose of this book is to influence the shape of things to come” (p. 23). With every page, Rudenstine seeks this influence.

REFERENCES:

Bergara, Mario, Barak Richman and Pablo T. Spiller. 2003. “Modeling Supreme Court Strategic Decision Making: The Congressional Constraint.” LEGISLATIVE STUDIES QUARTERLY, 28: 2, 247-280.

Brooks, Rosa. 2014. “Drones and the International Rule of Law.” JOURNAL OF ETHICS AND INTERNATIONAL AFFAIRS. 28: 83-104.

--. 2014. “Cross-Border Targeted Killings: ‘Lawful but Awful’?” HARVARD JOURNAL OF LAW AND PUBLIC POLICY. 38: 233-250.

Epstein, Lee and Jack Knight. 1997. THE CHOICES JUSTICES MAKE. Washington: CQ Press.

Epstein, Lee, Daniel E. Ho, Gary King and Jeffrey A. Segal. 2005. “The Supreme Court During Crisis: How War Affects Only Non-war Cases.” NYU LAW REVIEW 80: 1-116.

Garrison, Arthur H. 2013. SUPREME COURT JURISPRUDENCE IN TIMES OF NATIONAL CRISIS, TERRORISM, AND WAR: A HISTORICAL PERSPECTIVE. Boulder, CO: Lexington Books.

Goitein, Elizabeth. 2016. “The New Era of Secret Law.” Brennan Center for Justice, NYU Law School. https://www.brennancenter.org/sites/default/files/publications/The_New_Era_of_Secret_Law.pdf (last accessed May 30, 2017)

Mazetti Mark. 2013. THE WAY OF THE KNIFE: THE CIA, A SECRET ARMY, AND A WAR AT THE ENDS OF THE EARTH. New York: Penguin Press.

Serwer, Adam. February 27, 2013. “Supreme Court: You Can't Challenge Secret Law Because It's Secret.” THE ATLANTIC, http://www.motherjones.com/mojo/2013/02/supreme-court-says-you-cant-challenge-secret-law-its-secret (accessed May 30, 2017).

CASE REFERENCES:

BOUMEDIENE V. BUSH, 553 U.S. 723 (2008).

HAMDI V. RUMSFELD, 542 U.S. 507 (2004).

INTERNATIONAL REFUGEE ASSISTANCE PROJECT V. TRUMP, Case No. 17-1351 (2017). [*79]

YOUNGSTOWN SHEET & TUBE V. SAWYER, 343 U.S. 579 (1952).

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© Copyright 2017 by author, Tobias T. Gibson.