The World War II German Saboteurs' Case and Writs of Certiorari before Judgment by the Court of Appeals: A Tale of Nunc Pro Tunc Jurisdiction
Bittker, Boris I., Constitutional Commentary
Professor David J. Danelski has recently published an excellent account and analysis of the trial by military commission of the eight German saboteurs who landed on the beaches of Long Island and Florida during World War II, and of Ex parte Quirin, in which the Supreme Court, after two days of oral argument at an unusual special session called by Chief Justice Stone, upheld the constitutionality of the military commission's jurisdiction.(1) Like other commentators, Professor Danelski focuses primarily on the central issue in Ex parte Quirin--the constitutional power of a military commission to try persons apprehended in the United States when the federal and state courts were open and functioning. Not surprisingly, the commentators, including Professor Danelski, have given little attention to two threshold issues that were the subject of intense inquiry during the oral argument but then faded from the forensic scene.
These preliminary issues were (1) whether the petitioners in Ex parte Quirin (the would-be saboteurs) had the right to seek any remedy in the federal courts and (2) whether the Supreme Court had jurisdiction to entertain and pass on their petitions for habeas corpus. Despite the fact that President Roosevelt's Proclamation of July 2, 1942, entitled "Denying Enemies Access to the Courts of the United States,"(2) seemed to deny the Quirin petitioners all access to the federal courts, the first issue gave the Court little trouble: both during oral arguments and in the ultimate opinion, the Court easily--but without any analysis--concluded that the petitioners could properly seek the assistance of the federal courts. The more ticklish threshold issue was whether the Supreme Court itself had jurisdiction, and it is to that question that I now turn.
THE SUPREME COURT'S JURISDICTION TO ENTERTAIN PETITIONS FOR HABEAS CORPUS
The second threshold question in Ex parte Quirin was whether the Supreme Court had jurisdiction to pass on the petitioners' applications for habeas corpus. If the Court had found it necessary to answer this question at the end of the first day of oral argument, the answer (as explained below) would have been "no." But its jurisdiction was established, retroactively so to speak, by a procedural episode that occurred between the first and second days of argument. This switch in time led Professor Robert E. Cushman, the author of the first published scholarly analysis of Ex parte Quirin, to observe that "the Court's jurisdiction caught up with the Court just at the finish line."(3)
Because I was personally involved in this race to the courthouse steps, I am shifting to the first person singular for the rest of this narrative account.(4)
I arrived in Washington in the summer of 1942, one year out of law school, to join the legal staff of the Lend-Lease Administration, whose general counsel was Oscar S. Cox. He was an energetic, resourceful, and self-assured lawyer, who had come to the attention of the White House (especially Harry Hopkins) and of Attorney General Francis Biddle as a principal draftsman of the Lend-Lease Act. His skills led quickly to his additional appointment as Assistant Solicitor General, who in those days was responsible for drafting two categories of documents: the Executive Orders by which President Roosevelt created, reshuffled, and reorganized the myriad of war-time agencies, and the Opinions of the Attorney General, which were especially important in interpreting the Second War Powers Act and other statutes affecting military procurement and other wartime activities. Mr. Cox held his Lend-Lease and Justice Department posts concurrently, and those wide responsibilities were augmented by still a third appointment, as general counsel for the Office of Emergency Management, a kind of executive holding company for the wartime operating agencies. His glittering reputation, enhanced by the reputations of his associates (including George Ball, Lloyd Cutler, Myres MacDougal, and Eugene Rostow), was a magnet for ambitious younger lawyers, especially graduates of Yale, Mr. …