Professor David Rudenstine’s Book, "The Age of Deference: The Supreme Court, National Security, and the Constitutional Order" Sparks Vibrant Debate
Floersheimer Center Event Draws a Full House
September 19- A panel of distinguished experts captivated a packed Jacob Burns Moot Court Room on September 19 with a robust and lively discussion of the Supreme Court’s approach to the executive branch in cases involving national security over the past seven decades. Legal scholars on both sides of the issue traded arguments surrounding everything from the Founding Fathers’ penchant for secrecy, to modern practices of interrogation, preventative detention, and the National Security Agency’s metadata collection program.
The event was hosted by the Floersheimer Center for Constitutional Democracy to mark the publication of Professor David Rudenstine’s new book, The Age of Deference (Oxford University Press, 2016). It was part of Cardozo’s 40th Anniversary Celebration CardozoLawTalks/40 series.
The moderator for the occasion was Adam Liptak, the veteran Supreme Court correspondent for The New York Times. Panelists were Judge Michael Mukasey, U.S. Attorney General under George W. Bush from 2007 to 2009; Steven Shapiro, legal director for the American Civil Liberties Union; Matthew Waxman, professor at Columbia Law School and a former George W. Bush administration advisor; and Cardozo Associate Professor Deborah Pearlstein, who has earned national recognition for her work on law and U.S. national security policy, including through her service on the first team of outside legal observers to be granted access to military commission trials at Guantanamo Bay,.
Dean Melanie Leslie introduced former Cardozo Dean Rudenstine, currently Sheldon H. Solow Professor of Law, as “a brilliant scholar and a great champion of Cardozo Law School.” The author wasted no time in stating his thesis: since World War II, the Supreme Court has betrayed its responsibilities to hold the president meaningfully accountable to law in cases implicating national security. As Rudenstine put it, “The Court has accommodated itself to a degree of secrecy with no antecedent in American judicial history.” The available evidence shows, he said, that this practice has undermined the country’s cornerstone checks and balances, weakened its commitment to the rule of law, and denied injured individuals a right to redress.
Mukasey, in a lengthy rationale for judicial deference, drew a direct line from the early days of the Republic to the role of the Foreign Intelligence Surveillance (FISA) Court, the targeted killing of ISIS militants, and the NSA metadata program – which he defended emphatically, saying: “Depriving the government of this power on the ground it could be misused would be tantamount to saying that police should be disarmed because they could potentially use their weapons on citizens.”
None of the panelists disputed the occasional need for secrecy in wartime or where national security was at stake – as Pearlstein put it, “Whether deference is good or not depends on the context.” What’s missing is transparency, added Shapiro: “It’s simply problematic for the government to create standards in secret…. It’s one thing when the Court engages in a discussion of the merits, as it did when ruling for the internment of Japanese Americans. Something very different is going on now; cases are dismissed before they even reach the courts because of various doctrines that effectively close the courthouse doors.”
Pearlstein recounted the recent history of legal challenges to the indefinite detention without charges of those once called “enemy combatants” at Guantanamo, and noted that whereas those challenges haven’t yet resulted in the closure of the prison, the number of detainees has dwindled to several dozen from close to 800 and, significantly, none has been added since 2008. That observation prompted Waxman to concede that, despite the apparent immutability of current policy, in the long run “even the slightest risk of judicial intervention casts a long shadow over the executive branch and affects executive decision making.”
In his introduction, Rudenstine had noted the Court’s role in preserving and strengthening the constitutional order and urged it to “chart a course between the extremes” – an argument the audience for this provocative panel discussion will surely ponder as the government continues to grapple with difficult issues in this age of terror.