Richard Pildes looks on the money when you line up two recent pieces of his with the decision in Hamdan. In the most recent Harvard Law Review, he and Daryl Levinson argue that separation of powers is contingent on divided control of the political branches, and that one-party (“unified”) government should push the Supreme Court to read congressional intent less generously to authorize executive unilateralism, specifically in the context of wartime. “A default rule against latitudinous interpretations in support of executive power during unified government could be an action-forcing mechanism to press a reluctant, but not ideologically recalcitrant, Congress to share responsibility for these difficult choices — or at least give them a serious airing.”
That’s a pretty plausible explanation of where the Court may have been coming from in Hamdan (no cite to Pildes – it’s hardly the kind of rationale that the Court is likely openly to acknowledge, as Pildes himself recognizes), adopting a narrow interpretation of the AUMF and forcing Congress to take a focused look at the tribunals. The counterfactual: Would it have come out with the same result if we had a Democrat Congress?
The Harvard piece, along with a 2004 essay with Sam Issacharoff, also maps well onto Hamdan in extracting a process-based, institutionally-focused tradition in wartime decisionmaking from the Court. The Court has threaded the poles of rights-based idelaism on the one hand and deference to executive unilateralism on the other, looking instead for the reassurance of bilateral agreement between the political branches. The Youngstown story is of course well known along these lines. Less familiar is Pildes’ retelling of Milligan and Korematsu. Korematsu, he argues, was less important than Endo, in which the Court struck down the continued detention of Japanese-Americans for lack of congressional authorization. Milligan was rights-based, no doubt, but was also an institutional disaster for the Court, drawing serious political fire not for its result but more for its reasoning and forcing a retreat to a less aggressive, process-based approach in McCardle.
I’m not sure this account works seamlessly as a matter of history (how, for instance, does it explain the post-Vietnam era in which the Court steered completely clear of insinuating itself in wartime episodes, the plain command of the War Powers Resolution notwithstanding). But there is some powerful stuff here. In the Milligan story, particularly, there was a clear lesson for the Hamdan court: play it modestly. That’s what it did, and even though we are witnessing a lot of turbulence in the wake of the decision, it doesn’t look like any of it is likely to take the Court down.