Academic journal article Justice System Journal

International Conflicts and Decision Making on the Federal District Courts*

Academic journal article Justice System Journal

International Conflicts and Decision Making on the Federal District Courts*

Article excerpt

The international environment influences domestic politics, particularly during times of war. The traditional governmental response to such crises is to curtail the civil rights and liberties of Americans in the name of national security. Often, challenges to these restrictive policies find their way into the federal court system. However, tittle is known about the systematic effects of these conflicts on the choices jurists make. To redress this deficiency, we investigate whether international conflicts influence the decision making of federal district-court judges by examining the choices those judges make during periods of both war and peace. In addition, we consider whether male and female jurists react differently to periods of international unrest. We find that female judges do respond to wars, deciding cases more liberally than in peacetime, but male judges exhibit no response. As such, our results suggest that gender is an important consideration in evaluating the judicial response to war.

The current U.S. war on terror has had a dramatic influence on many aspects of lomestic politics. None, however, have been as controversial as the debate regarding the potential erosion of individual rights and liberties. In light of the Patriot Act, and other governmental responses to the war on terror, many academics, politicians, and pundits have speculated on what effect the current crisis may have on the level of freedoms enjoyed by the American citizenry. To be sure, the debate regarding the trade-off between freedom and security is hardly new to the postSeptember llth era. The general consensus is that, during times of war, the government tends to err on the side of national security to the detriment of individual freedoms (e.g., Linfield, 1990; Rehnquist, 1998; Tushnet, 2003). Historical evidence suggests this sentiment is not unfounded. Supporting this perspective, for example, analysts point to a variety of war-related activities, including the suspension of habeascorpus rights during the Civil War (e.g., Neely, 1992), the Palmer Raids following World War I (e.g., Duggan, 2005), the internment of Japanese-Americans during World War II (e.g., Robinson, 2001), the attempted suppression of the publication of the Pentagon Papers during the Vietnam War (e.g., Rudenstine, 1996), and, most recently, the increase in governmental surveillance associated with the war on terror (e.g., Nelson, 2004). A more contentious issue, however, involves the role of the judiciary in determining the balance between liberty and security. It has been suggested that, during times of international crisis, the courts-the very institutions designed to protect individual freedoms from an overzealous government-often stand idly by and may even aid in the erosion of individual rights (e.g., Friedman and Neuborne, 1972; Linfield, 1990; Lobel, 2002; Rehnquist, 1998; Rostow, 1945; Tushnet, 2003).

Although receiving general support from the academic community, the notion that courts allow civil rights and liberties to be curtailed during war, especially those very rights it would otherwise protect, is supported primarily through anecdotal evidence. cases such as Korematsu v. United States (1944), in which the Supreme Court upheld an executive order excluding citizens of Japanese ancestry from areas considered critical to national security, are often treated as definitive evidence that the "crisis thesis" is, in fact, correct (e.g., Garvin, 1999; Rostow, 1945; cf. Barak, 2002; Portas, 1968). Yet, the idea that the judiciary allows civil rights and liberties to be eroded during periods of international crisis cannot be confirmed by a single case, or even a handful of similar cases. Instead, the crisis thesis requires the analysis of empirical patterns over time regarding judicial decisions in civil rights and liberties cases during periods of both war and peace. Despite the fact that literally hundreds of articles and books are dedicated to the discussion of the crisis thesis (for an overview, see, e. …

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