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Title :Wiley Rutledge, Executive Detention, and Judicial Conscience at War Author • LEGAL STUDIES RESEARCH PAPER SERIES • Research Paper No. 2006-09 Date: 06-01-2006 Title : Wiley Rutledge, Executive Detention, and Judicial Conscience at War Author: Craig Green 84 Wash U. L. Rev. ____ (forthcoming 2006) This paper can be downloaded without charge from the Social Science Research Network Electronic paper Collection: http://ssr n.com/abstract=905119 Wiley Rutledge, Executive Detention, and Judicial Conscience at War Craig Green* Judicial biography has never been more popular than it is today, nor more politically relevant. Felix Frankfurter as a law professor announced the need for full-length stories of Supreme Court Justices “to rescue the Court from the limbo of impersonality.”1 “Until we have penetrating studies of the influence of these [judges],” he wrote, “we shall not have an adequate history of the Supreme Court, and, therefore, of the United States.”2 Frankfurter’s call has been answered for many jurists,3 yet even fifty years after Wiley Rutledge died, there was no adequate * Assistant Professor, Temple University’s Beasley Law School; J.D., Yale Law School. Many thanks to John Ferren, David Hoffman, Duncan Hollis, Louis H. Pollak, and Neil Siegel for invaluable help with previous drafts, and to Kathryn Davidson and Joshua D’Ancona for exceptional research assistance. This Article is dedicated, with deepest gratitude and respect, to Louis H. Pollak. 1. FELIX FRANKFURTER, THE COMMERCE CLAUSE: UNDER MARSHALL, TANEY ANDW HITE 6 (1937) [hereinafter FRANKFURTER, THE COMMERCE CLAUSE]. Frankfurter claimed that “[a] full-length analysis of only two or three of the seventy-eight Supreme Court Justices has been attempted.” Id. That appraisal was exaggerated when written. See, e.g., ALBERT J. BEVERIDGE, THE LIFE OF JOHN MARSHALL (1916); WILLIAM GARRETT BROWN, THE LIFE OF OLIVER ELLSWORTH (1905); FRANK MONAGHAN, JOHN JAY: DEFENDER OF LIBERTY (1935); JAMES PIKE, CHIEF JUSTICE CHASE (1873); BERNARD STEINER, LIFE OF ROGER BROOK TANEY: CHIEF JUSTICE OF THE UNITED STATES SUPREME COURT (1922); CARL BRENT SWISHER, STEPHEN J. FIELD : CRAFTSMAN OF THE LAW (1930). And Frankfurter himself contributed to the field. See FELIX FRANKFURTER, MR. JUSTICE HOLMES (1937); cf. MR. JUSTICE BRANDEIS (Felix Frankfurter ed., 1932). 2. FRANKFURTER, THE COMMERCE CLAUSE, supra note 1, at 6. 3. If any “impersonality” continues to cloak modern Courts, it does not owe to a dearth of biographies. For recent examples, see DENNIS J. HUTCHINSON, THE MAN WHO ONCE WAS WHIZZER WHITE: A PORTRAIT OF JUSTICE BYRON R. WHITE (1998); JOHN C. JEFFRIES, JUSTICE LEWIS F. POWELL, JR. (1994); BRUCE ALLEN MURPHY, W ILD BILL: THE LEGEND ANDL IFE OF W ILLIAM O. DOUGLAS (2003); ANDREW PEYTON THOMAS, CLARENCE THOMAS: A BIOGRAPHY (2001); JUAN W ILLIAMS, THURGOOD MARSHALL: AMERICAN REVOLUTIONARY (1998); TINSLEY E. YARBROUGH, MR. JUSTICE BLACK ANDH IS CRITICS (1988); TINSLEY E. YARBROUGH, DAVID HACKETT SOUTER: T RADITIONAL REPUBLICAN ON THE REHNQUIST COURT (2005). For other important examples, see LIVA BAKER, FELIX FRANKFURTER (1969); J. WOODFORD HOWARD, JR., MR. JUSTICE MURPHY: A POLITICAL BIOGRAPHY (1968); ANDREW L. KAUFMAN, CARDOZO (1998); ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THEL AW (1956); ALPHEUS THOMAS MASON, BRANDEIS: A FREE MAN’S LIFE (1946); ROGER K. NEWMAN, HUGO BLACK: A BIOGRAPHY (1994); TINSLEY E. YARBOUGH, JOHN MARSHALL HARLAN: GREAT DISSENTER OF THE WARREN COURT (1992). 1 account of Frankfurter’s colleague, leaving modern readers with little to no impression of Justice Rutledge or his work. 4 John Ferren’s Salt of the Earth, Conscience of the Court is the first full biography of Rutledge, and the book not only lifts Rutledge from obscurity’s shadow; it also dispels any “limbo” surrounding the Court he served.5 Part I of this Article offers a brief biographical sketch aimed to show that Rutledge deserves that much. His pre-judicial life as dean, legal reformer, and advocate of progressive politics provides context for his work on the bench. Also, Rutledge’s tale sheds light on broader national issues, including FDR’s transformative judicial appointments, early twentieth-century legal education, and the New Deal’s influence on both. Any students of history, and especially any students of the Court, will appreciate Ferren’s introduction to this unknown, yet important Justice. Part II shifts from the historical to the modern, analyzing the significance of Rutledge’s judicial work for today’s cases concerning executive detention. In a series of recent cases, President Bush has claimed the power to detain individuals without judicial oversight, without criminal charges, and with at most hand-tailored military commissions to punish violations of the law of nations.6 Such issues might seem novel to modern minds, but they would not to Rutledge. 4. The only book-length treatment of Rutledge before John Ferren’s was FOWLER V. HARPER, JUSTICE RUTLEDGE AND THE BRIGHT CONSTELLATION (1965), which does not aspire to full biography and is of varied quality. Until recently, the best sources on Rutledge were two essays, John Paul Stevens, Mr. Justice Rutledge, in MR. JUSTICE 319 (Allison Dunham & Phillip B. Kurland eds., 1956), and Louis H. Pollak, Wiley Blount Rutledge: Profile of a Judge, in SIX JUSTICES ON CIVIL RIGHTS 177 (Ronald D. Rotunda ed., 1983) [hereinafter Pollak, Profile of a Judge]. Also, the Indiana Law Journal and Iowa Law Review jointly published a set of memorial essays, Symposium, Mr. Justice Rutledge, 25 IND. L.J. 421 (1950); and Symposium, Mr. Justice Rutledge, 35 IOWA L. REV. 541 (1950); see also David M. Levitan, Mr. Justice Rutledge, 34 VA. L. REV. 393, 526 (1948); Louis H. Pollak, Wiley B. Rutledge, 1943-1949, in THE SUPREME COURT JUSTICES, ILLUSTRATED BIOGRAPHIES, 1789-1993, 41 (Clare Cushman ed., 1993); Landon G. Rockwell, Justice Rutledge on Civil Liberties, 59 YALE L.J. 27 (1949). 5. JOHN M. FERREN , SALT OF THE EARTH , CONSCIENCE OF THE COURT: THE STORY OF JUSTICE WILEY RUTLEDGE (2004). In describing how his book came about, Ferren explains that he long desired to write a full biography of “someone in our national political life.” Id. at 543. Ferren’s search for a subject led him to contact the Library of Congress’s Assistant Chief of Manuscripts, who “immediately” named Wiley Rutledge as someone who had escaped due attention, and “whose papers, he assured me, contained a book worth writing.” Id. Ferren also identified Professor Andrew L. Kaufman of Harvard Law School as supporting the choice of Rutledge. Id. 6. See generally Hamdan v. Rumsfeld, 415 F.3d 33, 35 (D.C. Cir. 2005), cert. granted, 126 S. Ct. 1606 (2006) (No. 05-184) (addressing military commissions); Hamdi v. Rumsfeld, 546 U.S. 507 (2004) (addressing indefinite detention without charges); Rasul v. Bush, 542 U.S. 466 (2004) (addressing federal jurisdiction over executive detainees in Guantanamo Bay). 2 The most important cases of his era concerned the executive’s authority to detain. And Rutledge’s career, more than that of any other judge, exemplifies the challenges and mistakes that affect the rule of law in wartime. This Article uses three pairs of “old” and “new” cases to illustrate Rutledge’s modern relevance. First, a 1948 Rutledge opinion about habeas jurisdiction demonstrates the force of a certain style of legal reasoning.7 The calm, technical, value-laden analysis of Rutledge’s opinion did not persuade his colleagues at the time, but the Court adopted Rutledge’s approach many years later in the wartime detention context that had concerned him most.8 Second, Rutledge was the decisive fifth conference vote to support the government in Korematsu v. United States.9 Korematsu, and its precursor Hirabayashi v. United States,10 show the immense dangers of “small” judicial errors regarding executive power. My thesis is that close analysis of Rutledge’s role not only reshapes those landmark cases’ meaning; it also offers a crucial benchmark for modern efforts to avoid “another Korematsu” in Hamdi v. Rumsfeld.11 Third, Rutledge wrote a dissent about military commission procedures that parallels the currently pending case, Hamdan v. Rumsfeld.12 Rutledge identifies Hamdan’s main issue with vivid clarity, namely, whether any judicially enforceable limits constrain a President’s ability to punish war crimes. Given the coincidence of legal issues between Rutledge’s time and ours, lessons from his dramatic successes and failures are more valuable than ever. With respect to Hamdan, I suggest that modern Justices who are influences by Rutledge’s experience have various useful options with which to manage broad assertions of presidential detention authority. Part III briefly connects Rutledge’s life and Ferren’s book to the deepest issues underlying any judicial biography—namely, what judges should do and who they should be. Consider why judicial biographies are read in the first place. Compared to politicians, movie 7. Ahrens v. Clark, 335 U.S. 188, 194 (1948) (Rutledge, J., dissenting). 8. Rasul, 542 U.S. at 466. 9. 323 U.S. 214, 223 (1944). 10. 320 U.S. 81 (1943). 11. Hamdi, 542 U.S. at 507. 12. Hamdan v. Rumsfeld, 415 F.3d 33, 35 (D.C. Cir. 2005), cert. granted, 126 S. Ct. 1606 (2006) (No. 05-184). 3 stars, generals, and other “biographees,” judges fill their lives with plodding, sedentary events that do not produce a gripping read. The unacknowledged appeal of judicial biographies, however, is the light that their subjects’ stories cast on general issues of judging and judicial role. As a legal culture, biography is a popular repository for stories about “great” and “villainous” judges. These stories shape the context of modern judicial performance and, in turn, how such performance is itself judged. Using the genre of judicial biography to build and store legal icons has undeniable benefits, but it also carries risks. To maximize public currency, biographies typically describe only judges who have served the Court for decades and who have radically reformulated some field of (preferably constitutional) law.
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