The Blank Check: Supreme Court Decision-Making in National Security Claims and During Wartime
Wong, U Jin
The consensus on war-time judicial making generally states that judges and justices should be more deferential in a time of war. This tendency to deference by the judges and justices is attributed to the perceived greater expertise of the executive branch when dealing with a crisis or emergency. National security claims, which can occur both in war-time and during times of peace, involve similar perceptions of crisis and unequal expertise. The general consensus in the literature also expects greater deference by the Supreme Court towards the government when claims of national security surface in a case. In this work, this project attempts to explore two questions: Does the context of war-time affect Supreme Court decision-making? And: are members of the Supreme Court deferential to national security claims brought by the government, either in peace-time or war-time? This dissertation uses the Spaeth database for Supreme Court votes, and sifts for those cases that involve national security claims. Using a probit model, this project analyzes Supreme Court voting behavior across significant wars in the 20th century and also, explores behavior when national security claims are brought before them. The results show no statistical likelihood of deference towards the government by the Supreme Court. Generally, there is statistically significant likelihood of the Supreme Court voting against the government in wartime cases. Similarly, national security claims invoke a statistically significant likelihood of Supreme Court voting against the government's arguments. This project also analyzes specific cases from World War II onwards to the present, in order to shed some light on the overarching reasons for Supreme Court judicial decision-making for past decisions and exploring how these patterns might express themselves in future decisions.
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