A conservative legal activist told the New York Times recently that same-sex marriage, gun rights, religious rights, and the death penalty are “the issues that are really in play” in the expected fight over the nomination of a Supreme Court justice to replace the retiring David Souter. No matter where one’s political affiliations lie, that list probably looks familiar. But Peter M. Shane, author of the new Madison’s Nightmare: How Executive Power Threatens American Democracy (excerpt) has noticed that such lists of issues that dominate debates about future Supreme Court Justices often leave out what are “undoubtedly the most important constitutional questions raised by the last Administration and perhaps the most important set going forward: issues surrounding the scope of presidential power.”
We asked Shane to reflect on the issue in light of Souter’s imminent replacement:
During the second Bush Administration, a change of one vote on the Supreme Court would have deprived military detainees of habeas corpus rights or extended procedural protections so minimal as to be laughable.
The Supreme Court currently boasts a solid right-wing bloc of Chief Justice Roberts and Associate Justices Scalia, Thomas, and Alito, all of whom are strong defenders of executive power. What does this mean for the choice of a successor to Justice Souter?

President Obama is now poised to select his first appointee to the Court. For constitutional progressives, it would obviously be a disaster if he appointed a Justice who would join the four hard conservatives to cut back the right to privacy, impose tighter limits on affirmative action, make environmental laws harder to enforce, or eviscerate our antidiscrimination laws.
None of that is likely. All of these issues are front-and-center in the Democratic Party and high on the President’s agenda. The chances of a reactionary Obama appointee on these issues are slim to none.
But it is conceivable that the next couple of Supreme Court terms will bring the Court cases on the scope of state secrets privilege, the power of Congress to regulate executive branch wiretapping, the application of anti-torture law in wartime, and the scope of due process for alleged enemy combatants. It is critical that any nominee’s stance on such issues be part of the debate about Justice Souter successor.
The Los Angeles Times offered an acute assessment of Justice Souter’s role on the Court. It wrote, in a May 2, 2009, editorial: “Souter isn’t associated with majority opinions in transformative cases.… Still, … [he] consistently has supported the rights of women, minorities (including gays) and criminal defendants as well as the separation of church and state and freedom from overweening executive power. His finest hour may have been his opinion in the 2004 case of Hamdi vs. Rumsfeld, in which the court held that a U.S. citizen detained by the Bush administration as a suspected terrorist had a right to challenge his confinement.”
In other words, handing the Souter seat to an Associate Justice who embraces an aggressive view of presidential power could work a major change in our constitutional jurisprudence.
Historically, executive power is not a left-versus-right issue. The fact that a lawyer or judge may be liberal on individual rights issues does not guarantee equal vigilance against unilateral presidentialism. One of the most important contemporary defenses of a strong unitary presidency was authored by Professors Larry Lessig and Cass Sunstein, two brilliant scholars whose work in many other areas I deeply admire. Likewise, it was the administration of Lyndon Johnson—perhaps the most liberal in history—that asserted:

Under the Constitution, the President, in addition to being Chief Executive, is Commander in Chief of the Army and Navy. [His] duties carry very broad powers, including the power to deploy American forces abroad and commit them to military operations when the President deems such action necessary to maintain the security and defense of the United States.

In contrast, the late Chief Justice Rehnquist, a conservative by any definition, was a moderate on executive power issues. In 1988, he authored the Court’s opinion in Morrison v. Olson, which upheld the independent counsel law against arguments that it infringed on presidential prerogative. He also wrote Webster v. Doe, in which the court held that a CIA clerk was entitled to judicial review of the revocation of a security clearance because of his homosexuality. Over a sarcastic Scalia dissent, Rehnquist held that the clerk was entitled at least to the benefit of a longtime presumption that Congress wants federal courts to decide constitutional challenges in federal cases involving individual rights. The court would not lightly accept executive immunity from constitutional review.
Rehnquist even joined the plurality opinion in Hamdi v. Rumsfeld holding that U.S. citizens are entitled to administrative due process in determining their status as “enemy combatants” and may challenge in federal courts the legality of their detention.
Indeed, one of the most influential judicial opinions in U.S. history regarding presidential authority—an opinion concurring in the Court’s judgment in Youngstown Sheet & Steel v. Sawyer, which overturned President Truman’s seizure of the steel mills—was written by a conservative Justice, Robert Jackson.
It is not just the size of the Gang of Four that warrants concern about a fifth vote in favor of presidential unilateralism. It is also the fact that the protection of executive power has been a central theme in the legal and judicial career of three of these Justices—Roberts, Scalia, and Alito. Executive power is very much an issue at the top of their agendas. Given the opportunity to expand presidential power, there is no reason to doubt they will seize it.
The past three decades—and most especially the last eight years—have witnessed nothing less than an all-out executive branch assault on checks and balances, and a consequent threat to the constitutional design our framers intended. Legal disputes spawned by that assault may be Supreme Court fodder for years to come. Justice Souter and the country deserve a successor no less vigilant than he about these issues.