depends on the point in time that the courts act to check executive action. 23
So the conclusions are often just an unraveling of a priori assumptions or are
based on disputed interpretations of contentious cases. The second objection
is that theex postcontrol beingex postis by nature too late. This objection has
to be considered seriously. In itsthickversion it kills democracy altogether
and not just judicial review of decisions made under emergency; since a
prime minister or a president (with the support of Congress or the parlia-
ment) can decide to occupy militarily a country X in order to protect his own
country and it may well happen that the voters will be able to repeal that
decision only a couple of years later when it is too late! In principle they may
be waiting for four or Wve years! In itsthinversion it can be taken into
account and rejected.
When we analyze a decision of the American Supreme Court we have to
consider three dimensions:
A. the legal eVect (on the litigants);
B. the arguments (and counterarguments—when the Court is not unani-
mous) or opinions given in the case that provide the reasons for
deciding A;
C. the role of the decision as a ‘‘precedent.’’
The last eVect is the most important in that it establishes the rule governing
future conduct by government oYcials and may well have a deterrent eVect
on their future decisions, a consequence of especially great signiWcance when
it comes to emergency powers. One can think of Marbury vs. Madison: the
legal eVect of the Court’s decision in 1803 was favorable to the government
and not to the plaintiV(who did not receive his appointment). But this is not
the most important aspect of Marbury. What was and is still important was
shows in any event that the topic is largely understudied and needs more accurate and developed
research. Quite diVerent, in methodology (the book analyzes the major and more famous cases) and
conclusions, is Stone ( 2004 ).
23 Those who think that courts defer point to the fact that Milligan was decided after the Civil War
was over and that Korematsu did not either stop the incarceration of the Japanese or prevent the
government from doing the same thing again. On the other side, the Court had heard habeas corpus
petitions during the war and indicated that it had the authority to decide on the legality of
government conduct even if it did not decide that those actions were illegal. And the same Court
that decided Korematsu ordered the release of the Japanese in a companion case. The recent decisions
of the Supreme Court can be argued in either way: the court has not forced the government to release
prisoners and has taken, at this point, four years to provide some of them with a promise of some
constitutional protections. But, on the other hand, the ‘‘emergency’’ is, on the government’s account,
still continuing and so any judicial action counts as control exercised in the interim (t 2 ) and not
merely afterwards (t 3 ).
emergency powers 343