Thursday, September 08, 2005

Chief Justice Roberts and Executive Power: The Clerkship Inheritance

It is well known that Judge John Roberts served as a law clerk to the late Chief Justice Rehnquist, whom Roberts is quite likely to succeed. But less attention has been paid to the actual cases Roberts may have worked on as a law clerk for Rehnquist, even less attention to the cases that Rehnquist worked on when he was law clerk to Justice Robert Jackson in 1952. It turns out that Rehnquist most likely worked on Youngstown Sheet & Tube v. Sawyer , perhaps the most important case dealing with the scope of the President's executive power until Dames & Moore v. Regan, decided in 1981. Of course, it just so happens that Rehnquist was clerking for Jackson when Youngstown was decided, and Roberts was clerking for Rehnquist when Dames & Moore was decided. Will the Jackson-Rehnquist-Roberts tradition lead to yet another seminal case on executive power? It is quite likely.

Dames & Moore and Youngstown both involved questions of the scope of the President's power to unilaterally (meaning without authorization from Congress) pursuant to his general foreign affairs power.
The scope of this power is obviously central to many of the war-on-terrorism related cases facing the Supreme Court in the near future (e.g. Hamdan- the military commission case, the Hamdi enemy combatant cases, and the Guantanamo detainee cases). As the new Chief Justice, Judge Roberts is likely to rule on many, if not most of these cases.

If I had to guess, I would guess that Roberts will likely be very sympathatic to a broad reading of the President's foreign affairs power. Like Jackson, who served as Attorney-General for FDR, and Rehnquist, who served as an Assistant Attorney General for Nixon, Roberts' main government experience has been in the executive branch as associate White House Counsel and Deputy Solicitor General. His immediate mentor, Rehnquist, was also well-known for his willingness to invoke deferential doctrines like the political question doctrine to shield the executive's foreign affairs determinations from judicial review. Roberts' own brief record on the D.C. Circuit partially confirms this, although his concurring opinion in Acree v. Iraq (upholding the President's determination divesting U.S. POWs of judgments won against Iraq) relies solely on standard arguments of statutory interpretation.

We'll have to wait and see, but it would be an interesting twist of fate if Roberts were to pen the next great executive power case, building on the clerkship inheritance of Justices Jackson and Rehnquist.


Anonymous Anonymous said...

Everytime I think of Dames and Moore I picture a flashing sign in Las Vegas.

9/09/2005 3:30 AM  
Anonymous Anonymous said...

Interesting thought.

Speaking of Roberts' clerkship experience, and the interests in all of his past legal work as a government attorney, I wonder if anyone has culled the cert. memos he drafted and critiqued as a law clerk for further insights into his judicial philosophy. You might get a more detailed (in depth) perspective of the man in day to day matters the court addresses, rather than just the big issue topics.

The cert. memos must be available in the Blackmun papers.

9/09/2005 9:13 AM  
Blogger Chris Borgen said...

As it turns out, Rehnquist wrote about his clerkship experience (including Youngstown)in his 2001 book "The Supreme Court." Based on this, it seems like he didn't have much to do with the Steel Seizure case. He wrote, in part:

"The shortness of time would have precluded much participation by the law clerks in the drafting of Jackson's opinion in any event, but I am sure that this was the sort of opinion in which he felt no need for the help of clerks. We were shown the opinion in draft form, and as I recall, asked to find citations for some of the propositions it contained, but that was the extent of our participation."

Of course, while Rehnquist may not have had much an effect on the drafting of Jackson's separate opinion in Youngstown, that opinion may have had a significant effect on the future Chief Justice.

And while I agree that Judge Roberts' record indicates that he is likely to be deferential to executive power, we should keep in mind that that is not necesarily the lesson to be gleaned from the "clerkship inheritance." Keep in mind that Jackson's separate opinion wasn't a sweeping affirmation of Presidential authority, but rather a scaled assessment of Presidential power based on whether the executive was acting in concert with, in the absence of, or in opposition to Congressional legislation. Although very influential, this was a separate opinion; Justice Jackson also joined the opinion of the Court, authored by Justice Black, that found against the executive.

9/09/2005 2:09 PM  
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