Judicial Deference to the Executive Branch in Winter v. NRDC

Last month the Supreme Court rendered its latest installment on the issue of judicial supervision of national security. Winter v. NRDC has received surprisingly little attention, but it strikes me as an important example of judicial deference to the Executive Branch in military affairs. This language in particular is noteworthy:

We “give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” Goldman v. Weinberger, 475 U.S. 503, 507, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986). As the Court emphasized just last Term, “neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.” Boumediene v. Bush, ___ U.S. ___ (2008). Here, the record contains declarations from some of the Navy’s most senior officers, all of whom underscored the threat posed by enemy submarines and the need for extensive sonar training to counter this threat…. Several Navy officers emphasized that realistic training cannot be accomplished under the two challenged restrictions imposed by the District Court… We accept these officers’ assertions that the use of MFA sonar under realistic conditions during training exercises is of the utmost importance to the Navy and the Nation.

These interests must be weighed against the possible harm to the ecological, scientific, and recreational interests that are legitimately before this Court. Plaintiffs have submitted declarations asserting that they take whale watching trips, observe marine mammals underwater, conduct scientific research on marine mammals, and photograph these animals in their natural habitats. Plaintiffs contend that the Navy’s use of MFA sonar will injure marine mammals or alter their behavioral patterns, impairing plaintiffs’ ability to study and observe the animals.

While we do not question the seriousness of these interests, we conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy. For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe. In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet. Active sonar is the only reliable technology for detecting and tracking enemy diesel-electric submarines, and the President-the Commander in Chief-has determined that training with active sonar is “essential to national security.”

The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs. Of course, military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question.

The deference accorded to the Executive Branch in Winter was “great.” The actual review by the Court of the military’s declarations was perfunctory, essentially one sentence concluding that “[w]e accept your assertions.” No second guessing, no clarification.

Balanced against these military considerations were “serious” interests in protecting the NRDC’s ability to study and observe whales. But according to the Court the question was not even close. Unlike Boumediene, where the Court was at pains to highlight the fundamental nature of the competing interest—unlawful and arbitrary detention—the NRDC’s concerns fared poorly. So too did the interests of those who favor strong judicial supervision of the exercise of military power.

Moreover, the Executive actions appeared to be plainly inconsistent with NEPA—the federal statutory requirement that the military conduct an environmental impact statement (EIS) prior to rather than after engaging in the military exercises. Nonetheless, the Court easily rejected NRDC’s request for preliminary injunctive relief. Without even mentioning Youngstown, the Court ruled that if the Executive asserts military necessity to take action inconsistent with statutory obligations, so be it.

Perhaps Winter will only be a footnote in the extensive commentary on executive power in the age of Boumediene. But it bears emphasizing that where the Executive asserts that the military interest is great and the competing interest is of a “serious” but lesser value, then Winter may be the norm rather than the exception. Is, for example, the balancing of interests with intelligence surveillance closer to Winter or Boumediene?