August 12, 2007

They don't write Supreme Court opinions like they used to

Today I had occasion to read a couple of famous Supreme Court opinions by Justice Robert Jackson for a story that I'm working on. One is his concurring opinion in Youngstown, in which the Court found that President Truman couldn't invoke war powers to seize control of the nation's steel mills. The other is his dissent in Korematsu, in which the Court sanctioned the internment of Japanese-Americans in World War II. Both opinions contain lucid contemplations on the nature of executive power, and argue eloquently for such power to be restrained even--or perhaps especially--in times of emergency. For instance, this passage from Korematsu, in which Jackson warns of the consequences that will flow from this dangerous precedent:

"...once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic." A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image."

And in Youngstown, this passage seemed particularly pertinent, given--to name only the most recent example-- Congress's shameful capitulation over the wiretapping bill last week:

"I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers."