Abstract
On June 26, 2006, the U. S. Supreme Court issued what was hailed by many as a groundbreaking decision on the limits of executive power. In Hamdan v. Rumsfeld, a plurality of justices ruled that the military commissions proposed by the president for trying accused terrorists were illegal, because Congress had not explicitly authorized such measures. In a dissenting opinion, Clarence Thomas wrote the following:
With those words, Justice Thomas appealed to a centuries-long tradition of granting the other branches of government the widest possible latitude in areas where a compelling government interest is at stake. This practice is known as judicial deference; it is frequently applied when judges must deal with issues involving the defense of the nation.The plurality’s willingness to second-guess the Executive’s judgments in this context … constitutes an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority.1
Keywords
Judicial Review Democratic Legitimacy Military Commission Legislative Branch Moral Superiority
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Notes
- 9.In 1983, Korematsu’s conviction was overturned in a federal court. In 1988, the U.S. government issued a formal apology to Japanese-Americans victimized by the internment policy, and in 1990, began awarding reparations to camp survivors and their families. In 1998, Fred Korematsu was personally awarded the Presidential Medal of Freedom. See Josh Dubow, “Japanese-American Who Fought Internment Dies,” AP wire report, March 31, 2005, http://sacunion.com/pages/california/articles/3653.Google Scholar
- 10.For example, in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), the Supreme Court issued a decision that was effectively ignored by the executive. The Court, led by Chief Justice John Marshall, ruled that the Cherokee nation was not bound by the laws of the state of Georgia and that only the federal government had authority over Indian affairs. President Jackson, who disagreed with this ruling, remarked, “[T]he decision of the Supreme Court has fell still born.”He is often apocryphally reported to have said, “John Marshall has made his decision; now let him enforce it!” See Mr. Justice Adrian Hardiman, Supreme Court of Ireland, “Transparency and Accountability in the Enforcement of Judicial Decisions” (paper presented at the 12th International Judicial Conference, Bucharest, Romania, May 19–21, 2004, http://www.internationaljudicialconference.org/PDF/12/Hardiman.pdf).Google Scholar
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© Derek S. Reveron and Judith Hicks Stiehm 2008