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Hastings Law Journal

Abstract

Observers have long speculated about the effect of war on judicial behavior. While common lore maintains that courts are reluctant to affirm claims against the government in wartime, over the past sixty years a number of notable cases have gone against the U.S. government. Recently, empirical research has suggested that the Supreme Court does not rule differently on war-related cases which reach the Court during wartime versus those which reach the Court after the relevant war has ended. We consider the role of public opinion as a possible explanatory variable in wartime cases, noting that in a number of important verdicts which have gone against the elected branches, public opinion showed high levels of disapproval for the President, the war, or both. We examine notable Supreme Court verdicts in the separation of powers and in cases concerning claims for executive power during the period 1938 to 2008. Historically, popular presidents have won in the courts, while weaker Presidents have been less successful. We further argue that researchers must ask at what stage in a crisis was the Court's the decision made, what was the President's own popularity at that point in the war or crisis, what was the public's perception of the credibility of the threat or emergency, and what was the public's attitude about the policies the President was urging or enacting.

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