New from Oxford University Press:
The Age of Deference: The Supreme Court, National Security, and the Constitutional Order (August 2016),
by David Rudenstine (Cardozo School of Law). A description from the Press:
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.
A few blurbs:
"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
"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
More information is available
here.
