The Supreme Court in Times of Hot and Cold War: Learning from the Sounds of Silence for a War on Terrorism

Abstract

Introduction Justice William J. Brennan once remarked that the Court has never fully developed a jurisprudence of national security. It is simply too episodic, he said.1 Our present Chief Justice would, it would seem, largely agree, though his own research shows some greater willingness for the Court to superintend—at least after the fact2—the actions of the executive in times of war or similar crisis. My assignment in this essay was to ask the question slightly differently; namely, has the posture of the Court differed in times of hot or cold war, and if so, how has it differed? As will be evident momentarily, that question is less helpful to our present circumstance than it might seem. Why? Because, frankly, we are in neither a hot nor cold war, but something quite different3—something that has the potential to be not only hot, but blistering, and something which will likely never be fully appreciated as having gone truly cold.