Justice Jackson's Republic and Ours
LAW AND DEMOCRACY IN THE EMPIRE OF FORCE, H. Jefferson Powell, James Boyd White, eds., Univ. of Mich. Press, 2009
38 Pages Posted: 10 Apr 2010
Date Written: April 14, 2007
Over the past few decades it has been repeatedly said by lawyers and judges that the form of thought and expression we know as the judicial opinion has been changing in deep, disturbing, but obscure ways. Somehow the expectations that were once appropriate to the work of courts, especially the Supreme Court, are frustrated and blocked. What has in fact been happening? How has our conception of the law been changing? What can now be done about it?
This essay addresses these large questions by focusing on two opinions: first, the important opinion by Justice Jackson in the Steel Seizure Case, with an eye both to the what that opinion originally meant, in the legal and political culture in which it was issued, and to its present-day reception and interpretation; second, the opinion of Justice O'Connor in the recent Hamdi case (the "enemy combatant" case). The article explores how opinions used to be written and read; how they are written and read today; and what this means about the changes in the nature of legal thought, argument, and judgment that both practitioners and teachers have noticed.
Keywords: Judicial opinions, Steel Seizure Case, Hamdi Case, enemy combatant, judicial reasoning
JEL Classification: K4, K10, K41
Suggested Citation: Suggested Citation