Writing Opinions in Times of Conflict

February 4th, 2017

In times of conflict, judges at all levels often have to write very quickly to address fast-moving constitutional crises. For example, President Truman promulgated Executive Order No. 10340 on April 8, 1952. Shortly thereafter, the steel mill owners filed suit in the District of the District of Columbia, seeking a temporary restraining order to halt the seizures of their property. U.S. District Judge David A. Pine, promptly held oral arguments, and on April 29, 1952, issued a well-reasoned 14-page decision, finding that the Executive Order violated the separation of powers, which–in effect–issued a nationwide injunction, barring the Secretary from seizing any mill in the United States. That same day, the D.C. Circuit, sitting en banc, stayed the district court’s decision so long as a petition for certiorari was filed with the Supreme Court by May 3. Papers were filed by May 3, and the Supreme Court granted review on May 3. Oral arguments were held on May 12 and May 13, followed by the landmark decision on June 2, 1952.

Even as the Korean War unfolded, and the executive implored the Court that every day went by without steel manufacture would impede the war effort, the Court still took the steps necessary to publish a formalized, written opinion. If the issue was so urgent, why did the Justices bother to publish written opinions, rather than simply state “Affirmed” or “Reversed.” Certainly Judge Pine could have simply issued a paragraph-long temporary restraining order, finding that the challengers were likely to prevail on the merits. Same for the Youngstown majority.

The answer, I think, can be found in Federalist No. 78. According to Hamilton, courts, which are the “least dangerous branch,” have “neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” The thought-through written opinion–which represents not merely the individual judges’ proclivity–is the “judgment.” This reasoning, which can always be subject to criticism, is what provides the decision with legitimacy. There is a reason that even totalitarian regimes hold “show” trials–tinhorn dictators want to convey some legitimacy that the proceeding is in fact more than a political fait accompli.

But sometimes, judges don’t always have time to write an opinion when it actually matters. For example, in Ex Parte Quirin, the Nazi saboteurs perfected an appeal on July 29, 1942. The Court granted certiorari before judgment two days later, with the Court treating the cert-stage filings as if they were merit-stage filings. In a one paragraph opinion–without any reasoning–the Court found that the military commissions were lawful, that petitioner could be tried before that commission, and that the petitioner was not entitled to be discharged by writ of habeas corpus. Three months later, on October 29, 1942, Chief Justice Stone filed a lengthy opinion explaining why the government prevailed (apparently, Justice Jackson’s concurring opinion took some time to develop, thus stretching out the process). But by that point, it was largely a moot issue. The saboteurs had already been executed on August 8.

(The timing of this post will become clear in a subsequent).