Monday, June 16, 2008

Deference

In an article in yesterday’s New York Times, Jonathan Mahler discusses how unusual it is for the Supreme Court to uphold a challenge to a president’s wartime powers, as the Court did recently in Hamdi v. Rumsfeld, Rasul v. Bush, Hamdan v. Rumsfeld, and now Boumediene v. Bush. (Boumediene is a rebuke of Congress, too, insofar as it invalidates statutory stripping of federal jurisdiction to hear habeas corpus applications, but it's also fairly viewed as a rebuke to the president.) The reason for the usual deference to the executive, Mahler says, is “not hard to see”: “The justices presumably lack the expertise of White House military advisers, and they don’t want to be accused of interfering with efforts to keep America safe.”

This explanation must be correct, as far as it goes. Who wouldn’t be moved by those concerns if asked to undo something that the president claimed was necessary to protect the nation? (For my part, I hope I would be less worried about being “accused of interfering” than with the actual consequences of the interference, but I imagine I would fret about both.) Some might doubt that the justices' "lack of expertise" really holds them back; these doubters might argue that, in addressing problems concerning other areas of specialized knowledge, the Court has at times seemed unfazed by its members’ ignorance. Whether that’s a fair objection I’m not sure, but either way it’s a good guess that your basic justice reacts in the way Mahler suggests when deciding a national security issue.

There is also a reason, though, why Supreme Court justices in particular are probably even more inclined to defer to the president than many other people would be, even other successful lawyers and politicians. Supreme Court justices are appointed by presidents, and presidents, like other leaders of nations, are not known for willingly undermining their own power. Democratic and Republican presidents alike presumably favor candidates for Supreme Court justice who have a predilection to defer to executive authority (or, to the extent that there is a partisan divide on these issues, at least to prefer candidates who are more deferential than is typical among potential nominees within the president’s party). This predilection is frequently easy to identify in potential Supreme Court nominees--especially among those who have been judges, academics, or members of the executive branch. Because the president cares much more about this issue than anyone else, it is unlikely to affect strongly a nominee’s chances for confirmation. A tendency to defer to the executive is also especially likely to manifest itself in cases about military and security issues. These cases go to the heart of presidential power, and often arrive in a relatively unalloyed form. Other cases, in contrast, say a health or environmental issue that might reach the Court in the form of a test of agency authority, present a mixture of a presidential power issue with another politically charged substantive issue that isn't about presidential power at all.

Posted by David Gold

20 comments:

Neil H. Buchanan said...

"[T}he Court has at times seemed unfazed by its members’ ignorance."

Certainly Scalia is more than willing to expound on issues for which he can claim no special training or even competence. See, e.g., "[The Court's decision in Boumediene] will almost certainly cause more Americans
to be killed."

egarber said...
This comment has been removed by the author.
egarber said...

I think part of it might relate to alignment between Congress and the Executive branch on these matters. If the president acts in a way that Congress has either direcly (via law) or passively approved, it seems to me the Court would be gun shy -- i.e., unless there's a massively compelling reason, why interrupt the national consensus**?

On the other hand, if Congress passed a law limiting presidential powers in some way (like say, laws banning torture), that would seem to be a far easier task for the Court, because it's difficult for the Executive branch to argue that some non-enumerated "inherent" power over-rides a specific rule codified by Congress via the "making rules for armed forces" clause, etc.

**So I guess in some ways, it's remarkable that the Court took a stand last week, given that both political branches had aligned via law on the other side. Or maybe what's remarkable is that we've taken so many steps backward in our discourse / policy post 9-11.

Paul said...

I think I recall Mike doing a review of SCOTUS Justices and their deference to the executive. IIRC, Justices appointed with executive branch experience trended strongly towards deference; those without such experience did not.

I know I remember discussing this with him, but I am also pretty sure he wrote about it either here or at Find Law.

Paul said...

Isn't it pretty much part of the job of any judge to make decisions concerning matters about which the judge is unlikely to have any special training?

If they are shying away from doing so, I don't see how it is possible for them to do their job.

egarber said...

Isn't it pretty much part of the job of any judge to make decisions concerning matters about which the judge is unlikely to have any special training?

I think there's an important distinction here. In my view, it's not a judge's job to second-guess the wisdom or effectiveness of policy; the judge is responsible for interpreting the power contours of the constitution. These are two unique skillsets, I think.

In a way, the judge must ask, "I'll take your word for it that absolute power would more so secure the nation, but even so, the constitution doesn't allow the exercise of it. Determining the latter is where MY expertise comes in."

Paul said...

So you are suggesting that facts are irrelevant?

Paul said...

To make it more clear,

Take Neil's assertion/inference that Scalia improperly expounded "on issues for which he can claim no special training" when he stated that the court's decision will result in more American's being killed.

Assume (I don't know, but actually it seems likely) that "more American's will be killed" was an argument asserted by the executive in support of this power.

Are you saying that determining that issue *must* be irrelevant (not just in this case, but in all cases where it may be asserted)?

If not, how can you fault a Judge or Justice from reaching a conclusion on a matter "about which (s)he can claim no special knowledge" ?

Certainly, factual determinations are far less prevalent on appeal (and I suppose largely non-existent at the SC level), but fact based arguments are common place. Hypothetical scenarios posed during oral argument are almost exclusively an application of law to particular (hypothetical) facts.

Isn't it, in fact, the case that (with the possible exception of Justice Thomas) making some sort of factual determination in areas over which a Justice "can claim no special training" is part and parcel of the job?

egarber said...

Paul, if that's directed at me, I'm basically just making a general / philosphical point about specialty roles (specifically on constitutional issues). In Boumediene, the right either exists or not, right? If it does, the government is over-reaching if the line is crossed. The Court determines where the line is.

Or with the commerce clause, generally the Court will assess whether a significant nexus exists with commerce, not whether a certain regulation is "good for commerce". So there may be one set of facts, but for the court the facts are considered to answer a constitutional question -- vs. a policy one.

Isn't it, in fact, the case that (with the possible exception of Justice Thomas) making some sort of factual determination in areas over which a Justice "can claim no special training" is part and parcel of the job?

Sure. But the questions are different, depending on the branch.

JohnTaylor88 said...

If it does, the government is over-reaching if the line is crossed. The Court determines where the line is.

Actually, there is an argument that the Court doesn't get to determine where the line is, because "nothing in the Constitution," including the Suspension Clause, can override a legal declaration of what is American territory, a power exclusively vested to Congress. See Article VI, sec. 3 of the Constitution.

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