Judging the next emergency: judicial review and individual rights in times of crisis.

• Author: Cole, David

INTRODUCTION

As virtually every law student who studies Marbury v. Madison (1) learns, Chief Justice John Marshall's tactical genius was to establish judicial review in a case where the result could not be challenged. As a technical matter, Marbury lost, and the executive branch won. As furious as President Jefferson reportedly was with the decision, there was nothing he could do about it, for there was no mandate to defy. The Court's decision offered no remedy for Marbury himself, whose rights were directly at issue, and whose rights the Court found had indeed been violated. But over time, it became clear that the decision was a landmark victory for those who consider judicial review of political-branch action a critical element of a constitutional system.

Judicial review on matters of national security frequently follows the Marbury model. It rarely provides relief to the individuals before the Court when the national-security crisis is at its height. As in Marbury itself, the challengers generally lose, and the government generally wins. As a result, the conventional wisdom is that courts function poorly as guardians of liberty in times of crisis. Schenck, (2) Korematsu, (3) and Dennis, (4) from World War I, World War II, and the Cold War, respectively, are a few of the more notorious examples. In those cases, the Court authorized the criminalization of speech during World War I, detention based on race during World War II, and guilt by association during the Cold War.

The traditional view, based on these and other examples, holds that judicial review has largely failed to protect individual rights when their protection is most needed. There are good reasons to suspect that this would be so, and, as the examples cited above illustrate, there is plenty of evidence to support the conventional wisdom. But the conventional wisdom is too pessimistic. It is akin to arguing that Marbury demonstrates the weakness of the judiciary because the Court failed to afford Marbury himself relief for the violation of his rights.

Considered over time, judicial review of emergency and national-security measures can and has established important constraints on the exercise of emergency powers and has restricted the scope of what is acceptable in future emergencies. Because emergency measures frequently last well beyond the de facto end of the emergency, and because the wheels of justice move slowly, courts often have an opportunity to assess the validity of emergency measures after the emergency has passed, when passions have been reduced and reasoned judgment is more attainable. In doing so, courts have at least sometimes been able to take advantage of hindsight to pronounce certain emergency measures invalid for infringing constitutional rights. And because courts, unlike the political branches or the political culture more generally, must explain their reasons in a formal manner that then has precedential authority in future disputes, judicial decisions offer an opportunity to set the terms of the next crisis, even if they often come too late to be of much assistance in the immediate term. Thus, the Court has over time developed a highly protective test for speech advocating illegal activity, (5) subjected all racial discrimination since Korematsu to exacting scrutiny, (6) and prohibited guilt by association. (7) These decisions, among others, impose important limits on what the government can do in the current, post-September 11th crisis.

Since Marbury, scholars have devoted thousands of pages to debating the issue of judicial review, offering critiques of Chief Justice Marshall's reasoning, proposing alternative defenses of judicial review, and, more recently, questioning the value of judicial review altogether. One of the most familiar, and in my view still the strongest, defenses of judicial review is that first advanced in footnote four of Carolene Products, (8) implemented by the Warren Court and given its definitive academic elaboration in Professor John Hart Ely's Democracy and Distrust. (9) This is the notion that as an institution insulated from everyday politics, the Court is best suited to protect the interests of those who cannot protect themselves through the political process, whether they be members of discrete and insular minorities, dissidents, noncitizens, or other vulnerable individuals. As others have shown, the Court does not always live up to its responsibility, (10) But it is nonetheless an important ideal to which courts should be held accountable.

How should we judge judicial review from the standpoint of protecting the constitutional rights and liberties of the vulnerable in times of crisis? It is in times of crisis that constitutional rights and liberties are most needed, because the temptation to sacrifice them in the name of national security will be at its most acute. To government officials, civil rights and liberties often appear to be mere obstacles to effective protection of the national interest. As Bush-administration supporters frequently intone when defending their post-September 11th initiatives, "the Constitution is not a suicide pact." (11) Judicial protection is also critical because crisis measures are typically targeted at the most vulnerable among us, especially noncitizens, who have little or no voice in the political process. (12) We have been in such a crisis period since September 11th and will be for the foreseeable future. So now is a particularly propitious time to assess the value of judicial review in times of crisis. (13)

Part I of this Article will set forth the traditional view that the judiciary is inadequate in times of crisis, along with the evidence that supports it and the reasons that might explain it. Part II maintains that the traditional view overstates the case, because over time judicial decisions have had more of a constraining influence on emergency measures than appears when one looks only at the courts' performance in the midst of a crisis. Part III surveys judicial performance since September 11th on matters of national security and argues that while the record is far from exemplary, courts have actually been more willing to stand up to the government in this period than in many prior crises. Part IV responds to a recent proposal by two leading scholars that courts and the Constitution ought to play less of a role in assessing emergency measures. (14) Professors Oren Gross and Mark Tushnet have both recently argued that the poor performance of courts during emergency periods and the need for extraordinary emergency powers should impel us to acknowledge explicitly the validity of extraconstitutional emergency measures and leave judgment of such measures to the political rather than the judicial process. In my view, this proposal is fundamentally misguided, both because it fails to acknowledge the valuable role that courts have played, when viewed over time, in constraining emergency powers, and because the alternative of relying on the political process would almost certainly provide even less protection for individual rights than the courts have. To paraphrase Winston Churchill, judicial review is the worst protector of liberty in times of crisis, with the exception of all the others.

1. THE CONVENTIONAL WISDOM

   The conventional wisdom is that courts are ineffective as guardians of liberty when the general public is clamoring for security. Clinton Rossiter, in an influential study of the Supreme Court in wartime, concluded that:

   the courts of the United States, from the highest to the lowest, can do nothing to restrain and next to nothing to mitigate an arbitrary presidential military program suspending the liberties of some part of the civilian population.... Whatever relief is afforded, and however ringing the defense of liberty that goes with it, will be precious little and far too late. (15) Judge Learned Hand similarly concluded that one cannot rely on the courts in times when the people do not fight for their own rights:

   I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes.... Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, nor court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it. (16) Justice Robert Jackson took this view so far as to advocate in dissent in Korematsu that the civil courts should simply refuse to enforce military orders. Jackson famously wrote:

   Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive.... If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history. (17) Finally, George Bernard Shaw gave the critique his own inimitable flair in offering the following evaluation of the courts during World War I:

   [D]uring the war the courts in France, bleeding under German guns, were very severe; the courts in England, hearing but the echoes of those guns, were grossly unjust; but the courts in the United States, knowing naught save censored news of those guns, were stark, staring, raving mad. (18) There is a wealth of evidence to support this conventional wisdom. During the Civil War, apart from Chief Justice Taney's ineffectual solo intervention in Ex pane Merryman (19)--in which he declared invalid President Lincoln's suspension of habeas corpus, only to have Lincoln ignore him--the Supreme...