Please join us for a lunchtime book talk with David Rudenstine, to discuss his new book, The Age of Deference: The Supreme Court, National Security, and the Constitutional Order.
The Age of Deference: The Supreme Court, National Security and the Constitutional Order – What should be the role of the federal courts in national Security cases? How much deference should courts give to executive branch decisions when the nation’s security may be at risk? If the executive claims that a case seriously implicates national security, should judges accept that claim or inquire into its merits? How much secrecy should courts permit the executive and the congress to impose upon judicial proceedings which historically have been public? Thus, to what extent should courts accept secret evidence and protect the secrecy of law itself? How secret should the Foreign Intelligence Surveillance Court be? And what should be the scope of its authority? And should the Chief Justice be permitted to appoint the judges of the secret court? These and other questions are addressed in David Rudenstine’s recent book, The Age of Deference: The Supreme Court, National Security and the Constitutional Order. In his book, Rudenstine argues that with the rise of the United States as a National security State and the emergence of the Imperial Presidency in the post-World War II decades, the federal courts adopted a hands-off, highly deferential stance in cases the executive claims implicates national security and that such a extreme deferential stance has denied injured individuals a judicial remedy, undermined the rule of law, and put the constitutional order at risk. Rudenstine appreciates that over the decades the courts have rendered decisions that deny the president a “blank check” in security cases, but he characterizes those cases as exception to the broad pattern of cases in which deference is the rule. Although not addressed in his book, Rudenstine now speculates that because Donald Trump’s words and conduct have raised such profound concerns among former highly experienced national security advisers, his election may cause the courts to be less deferential to his administration as they were in the Steel Seizure case, the Pentagon Papers case, and the cases decided by the Supreme Court in 2004, once it was clear that dangerous weapons of mass destruction were not found following the Iraq invasion.
David Rudenstine, a member of the faculty of the Benjamin N. Cardozo School of Law, Yeshiva University since 1979, was the law school Dean from 2001-2009, and is the Sheldon H. Solow Professor of Law. He is most recently the author of The Age of Deference: The Supreme Court, National Security and the Constitutional Order (Oxford 2016), and The Day the Presses Stopped: A History of the Pentagon Papers Case (1996), which the University of California Press nominated for a Pulitzer Prize and which was selected by Publishers Weekly as one of the year’s best books. He has written or co-authored two other books as well as many scholarly articles in the fields of constitutional law, national security, cultural property, freedom of expression, criminal justice, and labor arbitration. During the 2000-2001 academic year, David Rudenstine was an inaugural Fellow in the Law and Public Affairs Program as well as a Visiting Research Scholar and Visiting Professor of Public and International Affairs at Princeton University. In April 2001, he gave the tenth annual Helen Buchanan Seeger lecture sponsored by the Center for Hellenic Studies at Princeton University. Prior to becoming a member of the Cardozo faculty, he had been a legal services attorney, Director of the Citizens’ Inquiry into Parole and Criminal Justice, Counsel to the National News Council, and a Project Director, Associate Director, and Acting Director at the New York Civil Liberties Union. David Rudenstine received a B.A. (1963) and a Masters in Art in Teaching degree (1965) from Yale University and a J.D. degree (1969) from New York University School of Law. Prior to attending law school, he served as Peace Corps Volunteer in Uganda from 1964-1966.