Document Type


Publication Date



My goal in this Article is not to provide a comprehensive survey of the Court's separation of powers cases from 1952 to the present. Rather, I want to present a modest-sized account of this shift from humility to arrogance and to do so not by the direct method of scrupulous narration, but through a combination of stealth and selectivity, with the idea that less could be more. With this model in mind, I have focused on the language of a few representative opinions: Jackson and Frankfurters concurrences in Youngstown, Chief Justice Rehnquist's majority opinion in Dames & Moore v. Regan, Chief Justice Roberts's majority opinion in Medellin v. Texas, and Justice Kennedy's majority opinion in Boumediene v. Bush. It is my hope that plucking these few specimens from the great ocean of material to be examined with careful curiosity will yield an interesting analysis of how the Court made the transformation from reticence to insistence on judicial supremacy. My narrative, while willfully episodic in character again, no comprehensive coverage of all events is claimed-follows a chronological line.

Part II provides a textual analysis of Jackson's concurrence in Youngstown, with emphasis on his tripartite framework for evaluating presidential action. I am especially interested in Jackson's Category , the socalled "zone of twilight." I contend that Jackson, in identifying the zone of twilight as an area where presidential power is exercised in the absence of guiding legal referents, was actually describing a political reality, not establishing a normative legal category. As a result, Jackson's Category 2, properly understood, contains cases that are nonjusticiable (at least until an act of Congress provides the necessary legal parameters and removes such cases to either Category 1 or 3). By including an area of nonjusticiability within his taxonomical system, Jackson was following, and giving expression to, an ethos of humility.

Part III provides a similar textual analysis of Frankfurter's concurrence in Youngstown, with emphasis on his desire to avoid the "explosive potentialities" of constitutional adjudication. Here, I argue that Frankfurter's concurrence has a dual dynamic. On the one hand his concurrence represents the ethos of humility and eloquently espouses the value of judicial restraint as he warns of the danger of aggressive judicial intervention. On the other hand, his insistence on the need to respect the historical gloss on executive power as manifested through "systematic, unbroken, executive practice" has provided a platform for subsequent Courts to engage in the very intervention he warned against.

Part IV reviews two post-Youngstown cases-Dames & Moore v. Regan and Medellin v. Texas' -and shows how the Court capitalized on Frankfurter's historical gloss language and married it with Jackson's taxonomical structure to usher in a new era of judicial dominance in the separation of powers arena. This linguistic turn transformed Jackson's zone of twilight from an area of nonjusticiability to one that allowed for more judicial tripartite framework with Frankfurter's interpretive approach. The Court's adoption of Frankfurter's approach, however, was not wholesale. Rather, the Court appropriated Frankfurter's "gloss" theory while discarding Frankfurter's institutional statements about the Court's limited role in separation of powers cases. In so doing, the Court cast off the ethos of humility individually contained in Jackson and Frankfurter's concurrences and replaced that ethos with one of interpretive arrogance.

Finally, Part V examines this new ethos as expressed in the majority opinion in Boumediene v. Bush, one of the so-called "War on Terror" cases. In contrast to Jackson and Frankfurter's concurrences in Youngstown, Justice Kennedy's majority opinion in Boumediene assumes an authoritative posture. The underlying ethos is one of judicial dominance on matters of constitutional interpretation. The language, which is at times scolding and at others merely business-like in its diction, does not confine itself within a frame of restraint or reservation. Instead, it presumes that the circumstances created by the War on Terror require the judiciary to enter the debate over the war powers of the political branches.


Posted with permission.

Files over 3MB may be slow to open. For best results, right-click and select "save as..." Faculty Website