MARK HAMBLETT

Read Mark Hamblett on judges and the war on terrorism, here. It's too bad that Hamblett left the Fourth Circuit out of the piece: it would have made judicial deference to the executive look more normal, at least at the appellate court level. Hamblett's story is that judges have "a difficult balancing act" because Ashcroft's DOJ is pushing things to the limit -- some way, beyond the limit, of course -- in the interest of preventing terrorist attacks. For the Fourth Circuit, however, at least with respect to enemy combatant designations and the legal disabilities that follow from that designation, there is no balancing act: courts need to defer.

Given my admittedly limited studies here, it strikes me that the real judicial lesson during wartime is that the Fourth Circuit's position is the norm, and the "balancing act" scruples represent outliers, at least to the extent that the scruples result in rulings against the government. The contrast between judges Scheindlin (deferential) and Mukasey (less deferential) drives Hamblett's piece, but Mukasey is an historical abnormality, it seems to me. I'm open to additional evidence, of course. As for less celebrated acts of judicial resistance: I recall some discussion in Mark Neely's The Fate of Liberty of a few judges in Pennsylvania who gave Lincoln some trouble with draft orders, and at least one judge out west (New Mexico?) who gave the military some trouble; and then there is Eric Muller's discussion of at least one heroic attempt to challenge the government's prosecution of internment camp draft resisters, in Free to Die for Their Country. I'm sure there are more examples, but I'd guess that if you put those opinions on a scale, they'd be outweighed -- overwhelmingly -- by the deferential rulings. Think of all the labor-crushing efforts at the turn of the century (also justified as a different kind of war, a war on "radicalism"), think of the WWI prosecutions, the Alien and Sedition Act cases (pursued vigorously by judges). And that's just off the top of my head.