The judicial temperament

[sandy levinson]

Oxford has recently published an interesting book edited by Del Dickson,
The Supreme Court in Conference (1940-1985).  The pages on Quirin are
interesting.  Frank Murphy recused himself because he had lobbied for an
appointment in the army reserves and actually "showed up at the special
hearing in Quirin wearing his uniform, which caused such a scandal among
the other Justices that he felt obligated to recuse himself."  So consider
in this context the following parts of a memorandum prepared by the
non-uniform-wearing Felix Frankfurter:

Some of the very best lawyers I know are now in teh Solomon Islands battle,
some are seeing service in Australia, some are sub-chasers in the Atlantic,
and some are on the various air fronts.  It requires no pet's imagination
to htink of their reflections if the unanimous result reached by us in
these cases shouldb e expressed in opions which would black out the
agreemtn in result and reveal internecine conflict about the manner of
stating that result.  If know some of these men very, very intimately.  I
think I know what they would deem to be the governing canons of
constitutional adjudication in a case like this.  And I almost hear their
voices were they to read more than a single opinion in this case.  [Jackson
was apparently suggesting the possibility of a concurrence, presumably
along the lines of his later opinion in Korematsu, calling into some
question the Court's speaking on some of the issues].  They would lsay
something like this, but in language hardly becomeing a judge's tongue:
"What in hell do you fellows think you are doing?  Haven't we got enough of
a job trying to lick the Japs and the Nazis without having you fellows on
the Supreme Court dissipate the thoughts and feelings and energeis of the
folks at home by stirring up a nice row as to who has what power, when all
of you are agreed that the president had thep ower to establish this
commission and that the procedures under the Articles of War for
courts-martial and military commission don't apply to this case?  Haven't
you got any smore sense than to get people by the ear on one of the
favorite American pasttimesk--abstract constitutional discussions?  Do we
have to another Lincoon-Taney row when everybody is agree and in this
particular case the constituitonal questions aren't reached?  Just relax
and don't be too engrossed in ouyur own interest in verbalistic conflicts,
because the inroads on energy and national unity that such conflict
inevitable[sic] produces, is a pasttime we had better postpone until
peacetime.

Is this relevant to considering the precedential value Quirin?  Does it
perhaps suggest something about how much we can trust judges to be the
"detached" enforcers of constitutional rights in time of war.  Isn't this a
wonderful display of "passion" intervening in "legal judgment" (something
that FF and the Harvardians, of course, regularly denounced?

sandy