The Essence of a Free Society: The Executive Powers Legacy of Justice Stevens and the Future of Foreign Affairs Deference

Abstract

After 9/11, Justice John Paul Stevens insisted the United States maintain its foundational commitment to the rule of law – the very "essence of a free society." Justice Stevens led the Court’s scrutiny and rejection of early Bush Administration policies regarding the detention and prosecution of suspected terrorists. Since it lost Justice Stevens’s passionate and principled voice in 2008, the Court has not addressed the scope of the President’s military detention authority. This Article considers Justice Stevens’s role in the Court’s altered stance, and also a complementary explanation: the Obama Administration’s improved interpretation and exercise of executive authority. Informed and inspired by Justice Stevens’s jurisprudence, a post-9/11 academic debate explores the deference due the Executive’s statutory and treaty interpretations on foreign affairs matters, appropriately favoring an intermediate measure of foreign affairs deference that provides a meaningful judicial check while respecting the Executive’s constitutional authority and expertise. This Article highlights the Bush Administration’s extraordinarily flawed theory and often secret claims of authority to contravene federal statutes that effectively forfeited its claim to judicial deference. Prevailing narratives that emphasize continuity – between the Bush and Obama policies as well as presidential power aggrandizements – underappreciate the unusual, arguably unique, nature of the Bush approach’s threat to the rule of law. Future judicial review of foreign affairs matters might not be as robust as some hope and others fear. Only the combination of judicial review and continued vigilance from nonjudicial sources can effectively check the Executive during times of war and crisis. This Article concludes by briefly assessing President Obama’s performance on rule-of-law issues that might never face judicial review.

Keywords: Justice John Paul Stevens, Supreme Court, Hamdan, Hamdi, War on Terror, Chevron, foreign affairs, commander in chief, George Bush, Barack Obama, executive power, Office of Legal Counsel, counterterrorism, judicial review, rule of law, deference