Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis

Abstract

The conventional wisdom holds that one cannot rely on courts to protect civil liberties in the face of national security claims by the government, especially in times of emergency. This article offers a revisionist view of the history of judicial intervention on matters of national security. It argues that the conventional wisdom focuses too narrowly on the specific plaintiffs who appear before courts in times of crisis, most of whom lose. But it notes that if one steps back and takes a longer view of the role of courts on matters of national security, the judicial record is not so bleak. While the Supreme Court (in)famously upheld punishment of speech during World War I, racial discrimination during World War II, and guilt by association during the height of the McCarthy era, it ultimately developed tests that essentially rule these emergency tactics off the table for future emergencies. The article discusses why the formal attributes of judicial decisionmaking are especially suited to playing this more long-term role in the defense of civil liberties.

The article then examines the courts' record on civil liberties in the post-September 11 period, and argues that while it is too early to make any formal assessment, the record so far is much better, from a liberties perspective, than in previous times of crisis. I suggest some reasons why courts may be more inclined today to question national security claims.

Finally, the article responds to a proposal advanced by Professors Oren Gross and Mark Tushnet, in independent articles, to acknowledge openly the legitimacy of extraconstitutional measures in times of emergency. Gross and Tushnet propose shifting the locus for assessing emergency powers from the judicial to the political branches. I argue that this proposal is fundamentally misguided, and would likely lead to even less protection of civil liberties than we have seen in the past. To paraphrase Winston Churchill, judicial review is the worst protector of liberty in times of crisis, with the exception of all the others.