Is Hamdan “Our Brown”?

It is sometimes said of today’s progressives that our agenda is a defensive crouch. More energy is spent rehashing defending old decisions than imagining new victories. I’ve always thought that this criticism, like critiques of democrats generally, is easy to exaggerate. Contingency, not planning, seems to win elections (and thus control courts). But it is true that today’s law students, of a certain mind, have few modern decisions that resonate like liberalism’s now fifty-year-old great triumph in Brown v. Board. Constitutional law class, with certain professors, can be like watching a slideshow of Aunt Mimie’s wonderful twenty-year old trip to England: it’s all stale and impersonal. Thus, a colleague at Temple suggests to me an interesting question: is it right to think of Hamdan as this generation’s Brown?

To be “our Brown”, a case must: (1) be controversial when decided; (2) attain orthodoxy quickly – so much so that a theory of constitutional interpretation that does not lead to its result is presumptively illegitimate; (3) purport to definitively resolve the major social question then facing the nation. (Roe and Lopez fail #2, for e.g.)

Hamdan has some of these characteristics, although (obviously) it was unanimous, it wasn’t written to inspire, and its scope is up for considerable debate. (Check out the Sunstein-Lederman debate). Indeed, if our guest Craig Green is right, perhaps the decision is nothing more than Lopez-redux: go forth, other branch, and collect better reasons. If the executive takes up Green’s challenge, or if later courts narrow Hamdan, then it has no shot at the Brown pantheon, and instead would be (at best) a “modern Youngstown.” But if the decision is seen to be a fundamental limitation of the executive branch, then perhaps its legitimacy will aggregate over time. Future judicial nominees would have to genuflect to the decision to achieve the bench: it would have taken its place in the canon.

Are there other contenders?

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9 Responses

  1. at best it’d be Your Brown, not ours; Hamdan’s certainly not a case I’d want to acknowledge as mine…Justice Scalia’s dissent in this case, his dissent in Morrison along with Justice Thomas’ dissent in Kelo all will have a much larger shelf life than anything Justice Kennedy is writing today. If law students are seriously studying his Hamdan decision in 20-30 years, I think we’ll be thankful we went to law school at an earlier time.

    But kudos for openly acknowledging the “progressive” tilt of your posting…

  2. Dave Hoffman says:

    MC: I think you miss the point. Brown, like apple-pie and the Philadelphia Phillies in a good year, can’t be gainsayed. If Hamdan turns out to be controversial in “20-30 years,” it won’t be “Brown-like.”

    I’m a little confused about your second line. My posts speak for themselves. Does the fact that I consider myself a progressive corporate scholar ( change what they say?

  3. Joe says:

    There is no Brown today, as there is no Warren Court. But the closest you get these days is probably symbolic cases like Lawrence v. Texas.

  4. Anon says:

    Are you kidding me? Maybe, if Hamdan had involved the construction of the President’s inherent powers under Article II, or the due process clause, or habeas suspension clause, or even the jurisdiction-stripping powers of Congress under Article III, it could have been one one-hundredth as important to one-ten-thousandth as many people as Brown. As it turned out, it was just a hyped-up statutory interpretation case that Congress might well make irrelevant a few months from now. The “major social question then facing the nation”? Please.

  5. Marty Lederman says:

    Hey, I’ve been second to no one in arguing for the significance of Hamdan, but even I don’t think it is “our Brown.” *Maybe* it will be viewed in the future as akin to Youngstown — which would be very significant — but to argue about whether it’s Brown-like is a distraction, I think.

    Isn’t it enough that Hamdan does at least these four things?:

    1. It reasserts the primacy of statutes, even in times of war, and strongly suggests at least a very powerful presumption that the President does not have authority as Commander-in-Chief to supersede such statutes — something of an important issue over the past few years.

    2. It holds that a broad force authorization, such as in the AUMF, does not trump such specific, preexisting restricitve war statutes. Obviously relevant to the NSA/FISA debate.

    3. As a matter of statutory construction, it very reasonably, but somewhat controversially, assumes that Congress expects the United States to abide by the laws of war.

    4. It holds that Common Article 3 of Geneva — violations of which are prosecutable under the War Crimes Act — applies as a treaty obligation to the conflict with Al Qaeda, thus establishing certain baseline norms that must be applied in that conflict and, as I’ve argued elsewhere, thereby completely altering the debate about torture and other interogation techniques.

    Any one of those four things would have been enormously important. The four together make the case truly momentous — or so it seems from this short-term perspective, anyway.

    So, it’s still not Brown — but it’s a very big deal.

  6. Marty Lederman says:

    Apologies for all the typos.

  7. Maybe I am missing your point but when you write:

    “Future judicial nominees would have to genuflect to the decision to achieve the bench: it would have taken its place in the canon.”

    …well, stripped of all its ideological baggage, this decision was one where the court overly parsed a piece of legislation in order to render a decision they very much wanted to render…and I just can’t see future generations of judge-wannabes sitting in a Senate confirmation hearing explaining why they think the Court was right to so read the DTA to avoid the obvious lack of jurisdiction intended by Congress.

    Beyond that (and with all due respect to the learned Mr. Lederman) I just don’t forsee Hamdan as having much of a practical impact – as precedent it will hopefully enjoy the same treatment that this Court afforded McCardle and historically, it will probably only be rehashed as part of the happy nostalgia the NY Times and Washington Post invoke admidst their collective sulk while covering Jenna Bush’s inauguration.

  8. marc g. says:

    I think J. Steven’s n. 23 in his Hamdan opinion has a chance to be the modern counterpart to J. Stone’s Carolene Products n. 4.

    To paraphrase another justice, from the acorn of footnote 23 may grow the judicial oak of a principle that presidents are not the state in wartime.

    Beyond that, I’m not sure.

  9. Alan Tauber says:

    I think the most impactful and lasting part of Hamdan will be Marty’s point 4 above, that Art. 3 of the Geneva Conventions applies in these situations. At the end of the day, other than that, Hamdan is a statutory intepretation case. Had it used more sweeping language of a constitutional nature, a la Justice Black’s plurality in Reid v. Covert, it would undoubtably take its place in history.

    I think for progressives, the most likely candidate for a “new Brown” would be Lawrence v. Texas as Joe notes above.