Wiley Rutledge, Executive Detention, and Judicial Conscience at War

Abstract:     
Wiley Rutledge is not well known in modern legal circles, but he should be. Rutledge was a truly exceptional judge, whose work compares in quality with Jackson's, Frankfurter's, or Black's. Also, his life and career track the rich, understudied period in Supreme Court history between Lochner's death and Brown's birth.

More importantly, Rutledge's jurisprudence about executive detention holds vital lessons for decisions in the War on Terror. This Article divides executive detention jurisprudence into three phases: jurisdiction, uncharged detentions, and trials by military commission. At each step, I compare a case from Rutledge's era to one from our own.

The Article's highlights include: (1) a clearer view of Rasul v. Bush's jurisdictional holding concerning Guantanamo Bay, (2) a revisionist account of the Japanese-American cases, Hirabayashi and Korematsu, (3) praise for Justice Souter's opinion in Hamdi v. Rumsfeld, concerning indefinite detention of US citizens, and [NEWLY ADDED] (4) the first comprehensive discussion of Hamdan, concerning modern military commissions.

The occasion for my attempt at a Rutledge Revival is John Ferren's superb biography, Salt of the Earth, Conscience of the Court. By way of brief conclusion, I sketch a theory of judicial biographies' role in the constructing cultural heroes and villains, and I suggest that certain tendencies within the genre risk distorting our intuitions and assumptions about judicial role and judicial business.

Keywords: Rutledge, jurisprudence, Consitutional law, legal history, national security, foreign relations, Korematsu, Hirabayashi, Hamdan, Rasul, Hamdi, military commissions, executive detention, internment

JEL Classifications: K19

Accepted Paper Series