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