The Age of Deference

The Supreme Court, National Security, and the Constitutional Order

David Rudenstine

Argues that cases implicating national security are an highly important and distinct set of cases that not only permitted but strengthened the rise of the Imperial Presidency and the national security state

Shows that the role of the high court in this important dynamic can only be understood by acknowledging that the Judiciary's Age of Deference commenced shortly after the end of World War II, as opposed to after 9/11 and the War on Terror

Argues that the rule of law compels the court to re-define its perspective and the legal doctrines central to the Age.

The Age of Deference

The Supreme Court, National Security, and the Constitutional Order

David Rudenstine

Description

In October 1948-one year after the creation of the U.S. Air Force as a separate military branch-a B-29 Superfortress crashed on a test run, killing the plane's crew. The plane was constructed with poor materials, and the families of the dead sued the U.S. government for damages. In the case, the government claimed that releasing information relating to the crash would reveal important state secrets, and refused to hand over the requested documents. Judges at both the U.S. District Court level and Circuit level rejected the government's argument and ruled in favor of the families. However, in 1953, the Supreme Court reversed the lower courts' decisions and ruled that in the realm of national security, the executive branch had a right to withhold information from the public. Judicial deference to the executive on national security matters has increased ever since the issuance of that landmark decision. Today, the government's ability to invoke state secrets privileges goes unquestioned by a largely supine judicial branch.

David Rudenstine's The Age of Deference traces the Court's role in the rise of judicial deference to executive power since the end of World War II. He shows how in case after case, going back to the Truman and Eisenhower presidencies, the Court has ceded authority in national security matters to the executive branch. Since 9/11, the executive faces even less oversight. According to Rudenstine, this has had a negative impact both on individual rights and on our ability to check executive authority when necessary. Judges are mindful of the limits of their competence in national security matters; this, combined with their insulation from political accountability, has caused them in matters as important as the nation's security to defer to the executive. Judges are also afraid of being responsible for a decision that puts the nation at risk and the consequences for the judiciary in the wake of such a decision. Nonetheless, The Age of Deference argues that as important as these considerations are in shaping a judicial disposition, the Supreme Court has leaned too far, too often, and for too long in the direction of abdication. There is a broad spectrum separating judicial abdication, at one end, from judicial usurpation, at the other, and The Age of Deference argues that the rule of law compels the court to re-define its perspective and the legal doctrines central to the Age.

The Age of Deference

The Supreme Court, National Security, and the Constitutional Order

David Rudenstine

Table of Contents

TK

The Age of Deference

The Supreme Court, National Security, and the Constitutional Order

David Rudenstine

Author Information

David Rudenstine served as Dean of the Cardozo School of Law from 2001-09, and is currently the Sheldon H. Solow Professor of Law at Cardozo, where he has taught constitutional law since 1979. The first dean appointed from the ranks of the Cardozo faculty, Professor Rudenstine is an American legal scholar respected for his work on free press, free speech, and national security issues. He is the author of The Day the Presses Stopped: A History of the Pentagon Papers Case, which was nominated for a Pulitzer Prize, and he is currently writing a book on the role of courts in national security cases. In recent years, he has organized and participated in legal panels on subjects such as the disclosures made by Edward Snowden and Wikileaks, the NSA Surveillance Programs, and the ACLU in American Life. In 2000-01, he was an inaugural fellow in Princeton University's Program in Law and Public Affairs.

The Age of Deference

The Supreme Court, National Security, and the Constitutional Order

David Rudenstine

Reviews and Awards

"David Rudenstine's new book is a calmly worded expression of outrage at the Supreme Court's violation of the rights of the individual in the name of deference to the Executive branch of the government. Massively documented, this troubling account of secret courts, unregulated surveillance, and unlawful detentions could not be more timely at a point when the future composition of the Court hangs in the political balance. It is not often that scholarship impeccably performed intersects with the urgent needs of the country and of Democracy." --Stanley Fish, Floersheimer Distinguished Professor of Law, Cardozo Law School

"Rudenstine's book will be a troubling and useful read for anyone expecting the story of a heroic Supreme Court reasserting the balance of security and civil rights in the wake of wartime overreach. Instead, he writes, the Court has engaged in a slow-motion abdication-resulting in a toleration for secret evidence, secret laws, and secret courts." --Amy Davidson, The New Yorker

"A compelling account of how courts have abdicated their responsibility when it comes to holding the executive branch accountable to constitutional limits in the realm of national security. Rudenstine persuasively shows that judicial deference has afforded the executive a blank check, and illustrates why such an approach is fundamentally irresponsible." --David Cole, Professor, Georgetown Law, and author of Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law

"The Age of Deference is a tour de force of constitutional history. Rudenstine recounts the myriad cases involving surveillance, civil liberties, secret courts, and secret laws that have evolved since World War II. Through this historical overview, Rudenstine finds that the courts have not only deferred to the Executive, but have entrenched their position of deference. ... [He] paints a compelling picture of a judiciary that for seven decades has slowly given up on engaging with the other branches of government on matters related to national security." --Gregory S. McNeal, Texas Law Review

"The Age of Deference is a powerful and intelligent book. It paints a scary world where the checks and balance of the American constitutional order have collapsed. It is bad enough that national security issues receive little scrutiny, but the courts are willing to defer even to the question regarding what should be considered a national security issue. The author concludes with a plea to rethink what constitutes a state secret and for the Court to take a less deferential view of abuses of rights in the name of national security, but there is little reason to think that Donald Trump will appoint justices and judges who will take up this call." --Criminal Law and Criminal Justice Books