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

As virtually every law student who studies Marbury v. Madison learns, Chief Justice John Marshall’s tactical genius was to establish judicial review in a case where the result could not be challenged. As a technical matter, Marbury lost, and the executive branch won. As furious as President Jefferson reportedly was with the decision, there was nothing he could do about it, for there was no mandate to defy. The Court’s decision offered no remedy for Marbury himself, whose rights were directly at issue, and whose rights the Court found had indeed been violated. But over time, it became clear that the decision was a landmark victory for those who consider judicial review of political-branch action a critical element of a constitutional system. Judicial review on matters of national security frequently follows the Marbury model. It rarely provides relief to the individuals before the Court when the national-security crisis is at its height. As in Marbury itself, the challengers generally lose, and the government generally wins. As a result, the conventional wisdom is that courts function poorly as guardians of liberty in times of crisis. Schenck, Korematsu, and Dennis, from World War I, World War II, and the Cold War, respectively, are a few of the more notorious examples. In those cases, the Court authorized the criminalization of speech during World War I, detention based on race during World War II, and guilt by association during the Cold War. The traditional view, based on these and other examples, holds that judicial review has largely failed to protect individual rights when their protection is most needed. There are good reasons to suspect that this would be so, and, as the examples cited above illustrate, there is plenty of evidence to support the conventional wisdom. But the conventional wisdom is too pessimistic. It is akin to arguing that Marbury demonstrates the weakness of the judiciary because the Court failed to afford Marbury himself relief for the violation of his rights.