global terrorism, reducing theWght against the enemy to the dimension of
criminal law (interveningex post facto).
Justice Black’s opinion for the majority strikes a moderate or intermediate
stance. It recognizes that emergencies are diVerent from ordinary times and
that the government will do things under these circumstances that it would
not be permitted to do otherwise. But Black insisted that the courts ought not
to stay on the sidelines as Jackson advised but should be ready to review
governmental actions not only after the emergency but while it is proceeding.
It seems to us that, Justice Black’s opinion notwithstanding, its weaknesses 29
were very important because
(a) it established the authority of the courts to review and impose limits on
the political branches for their conduct in emergencies;
(b) it established theprecedentthat the political branches have to take the
possibility of judicial review of executive actions,ex postand possibly in
the interim, into account on any future occasion;
(c) it rejects any idea that emergency measures are ‘‘political questions’’
excluded from the Court jurisdiction—a point that the Bush adminis-
tration tried unsuccessfully to vindicate in the Guantanamo case;
(d) it makes (constitutionally) possiblepreventive measuresin which courts
can measure the proportionality of government actions against the actual
danger they had to face;
(e) eventually, Black stresses (against Jackson) that the Court has to apply
some kind of proportionality test in the time of the emergency (t 2 ) and
not only afterwards when the court is asked to decide the legality of
government conduct (t 3 ). 30
If we consider all these aspects, the truth that courts can hesitate at the
beginning to oppose the executive and the legislative powers has to be relativized
considering that they seem to be, in a stable constitutional democracy, the last
and theWrst defense against abusing emergency powers, since they cannot only
checkex postthose abusive measures, but also have a role during the emergency
itself. And of course, they have anex anterole as well if we take into account the
precedental eVect that a ruling plays in governing future circumstances. 31
29 Its discriminatory character vis-a`-vis Japanese and American citizens of Japanese descent.
30 That seems to be the reason for the sentence that closed the majority opinion: ‘‘We cannot—by
availing ourselves of the calm perspective of hindsight—now say that at that time these actions were
unjustiWed’’.
31 The fact that the Bush administration ignored, after September 11 , that the Court had a say in the
legal treatment of the ‘‘enemies combatants’’ might be more telling about the special character of that
administration than about the power of the American Supreme Court.346 john ferejohn & pasquale pasquino