In addition to the election, yesterday was also the first anniversary of the terribly untimely passing of my college mentor, Professor Nasser Hussain. And this past weekend, the Amherst College Department of Law, Jurisprudence, and Social Thought hosted a touching academic gathering in his honor, titled “Thinking With Nasser Hussain,” and featuring work by a remarkable and cross-disciplinary array of scholars. In preparing my own presentation (about some of the remarkable overlap between Nasser’s work on habeas corpus in colonial India and post-9/11 America), I spent a lot of time reflecting upon my somewhat unorthodox path from college to today–including how I ended up in law school, why I gravitated so quickly and unhesitatingly toward the post-9/11 national security litigation, and what led me to develop a more general academic interest in the role of the courts in general (and in crisis times, in particular–hence the connection to habeas). In opening my talk to such a diverse cohort (where I was the only law professor in the room), I explained that “I am a Federal Courts nerd, and I’m a Federal Courts nerd because of Nasser.”
As I wrote last year, when I met Nasser (as a second-semester freshman at Amherst), I was torn between two career paths: historian or sportswriter (my dreams of a career in the NBA came had already been unceremoniously crushed). But Nasser’s teaching pointed me toward law–and toward the relationship between law and historical trauma. I was completely, utterly hooked–not just by the fascinating and unique legal questions raised by national security crises in general, but by the special role it seemed that courts could (and, every once in a while, did) play in pushing back against majoritarian institutions, whether at the domestic or international level, and whether in national security or run-of-the-mill legal cases. So it was that I went to law school in September 2001, thinking that I wanted to work for the then-nascent International Criminal Court (ICC) to further develop the idea of individual international criminal responsibility.
Then, September 11 happened. And what had, to that point, felt like a wholly academic interest in the role of courts in crisis times became a very real and very local concern, very quickly. That rather abrupt transition is a big part of why the defining feature of my academic and professional work to date has been about the unique, enigmatic institution that is the federal courts. Yes, the human in me often cares about the federal courts as a means for vindicating my own views of how particular substantive legal questions ought to be answered. But the scholar in me cares about the federal courts because of their role in answering those questions in the first place. It’s not just that the federal courts are independent–since independence can easily be abused. It’s that, for much of our history, the independence of the federal courts has allowed them to serve as a meaningful and generally responsible horizontal and vertical check on our other government institutions. Sometimes, they go too far for my tastes; far more often, they don’t go far enough. And my academic work is replete with critiques of both types of what is, to me, erroneous judicial decisionmaking. But the fact that we now accept, as a general proposition, the moral and legal authority of the federal courts to settle so many of our most important questions in the first place is, in my view, the defining feature of our constitutional system–and generally a salutary one, at that.
Of course, I said all of this last Friday, before any of yesterday’s results had come in. But it rings especially true to me this morning, as we’re heading for one-party rule in Washington featuring a President-Elect who has provoked some fairly substantial and significant concerns about the potential for abuses of executive power. I harbor no illusion that the federal courts will step in to protect the separation of powers and individual rights in all–or even most–of the cases that may very well arise under this new regime. And I do very much hope that Republican leaders in Congress take seriously their institutional obligation to check the Executive Branch even in cases in which the branches’ partisan ideological goals may dovetail. But even with at least one Supreme Court seat to be filled by a President Trump and a Republican-controlled Senate (to say nothing of the numerous vacancies on the lower federal courts), it seems like now is a good time for all of us to become Federal Courts nerds–not because they’re the best institution to stand in between government abuses and individual liberty, but because they’re the least-worst, uniquely situated to resist popular pressure and take the longer view of the relationship between the government and its constituents.
With that in mind, I go to bed mindful of Justice Jackson’s closing lines in his celebrated concurrence in the Steel Seizure case–penned by someone who, on the far side of his stint as Chief Prosecutor at the International Military Tribunal at Nuremberg, knew all too well exactly what could go wrong in a country in which the courts became complicit in governmental abuses:
The essence of our free Government is “leave to live by no man’s leave, underneath the law” — to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. . . . With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.