The Supreme Court During Crisis

Published in 2005. In NYU Law Review 80 (1): 1-116.

Revised version of papers presented at the 2004 annual meeting of the Midwest Political Science Association; the 2004 Symposium "Fear and Risk Perception in Times of Democratic Crisis" at the University of Missouri School of Law; and the 2003 Symposium "At War with Civil Rights and Civil Liberties" at Florida International University School of Law.

Winner of the Pi Sigma Alpha Award for the best paper delivered at the 2004 meeting of the Midwest Political Science Association; Winner of the Robert H. Durr Award for the best paper delivered at the 2004 annual meeting of the Midwest Political Science Association "applying quantitative methods to a substantive problem"; Winner of the McGraw-Hill Award for the the best journal article on law and courts written by a political scientist (presented by the Law and Courts Section of the American Political Science Association, 2006); Honorable Mention for the Law and Society Association Article Prize, awarded to recognize exceptional scholarship in the field of sociolegal studies for an article published in the previous two years" (presented by the Law and Society Association, 2006).

Lee Epstein
Daniel E. Ho
Gary King
Jeffrey A. Segal

Does the U.S. Supreme Court curtail rights and liberties when the nation's security is under threat? In hundreds of articles and books, and with renewed fervor since September 11, 2001, members of the legal community have warred over this question. Yet, not a single large-scale, quantitative study exists on the subject. Using the best data available on the causes and outcomes of every civil rights and liberties case decided by the Supreme Court over the past six decades and employing methods chosen and tuned especially for this problem, our analyses demonstrate that when crises threaten the nation's security, the justices are substantially more likely to curtail rights and liberties than when peace prevails. Yet paradoxically, and in contradiction to virtually every theory of crisis jurisprudence, war appears to affect only cases that are unrelated to the war. For these cases, the effect of war and other international crises is so substantial, persistent, and consistent that it may surprise even those commentators who long have argued that the Court rallies around the flag in times of crisis. On the other hand, we find no evidence that cases most directly related to the war are affected.

We attempt to explain this seemingly paradoxical evidence with one unifying conjecture: Instead of balancing rights and security in high stakes cases directly related to the war, the Justices retreat to ensuring the institutional checks of the democratic branches. Since rights-oriented and process-oriented dimensions seem to operate in different domains and at different times, and often suggest different outcomes, the predictive factors that work for cases unrelated to the war fail for cases related to the war. If this conjecture is correct, federal judges should consider giving less weight to legal principles established during wartime for ordinary cases, and attorneys should see it as their responsibility to distinguish cases along these lines.

Click here for the article.
Click here for the Midwest paper (.pdf).
Click here for a replication dataset.