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Thursday, July 25, 2024

The Youngstown Concurrence and Originalism

On the Originalism Blog, Mike Rappaport has a critique of Trump v. United States that includes the following passage:

"There are many other problems with the Court’s opinion from an originalist perspective. One particularly worth mentioning is that the Court repeatedly cites Justice Jackson’s concurrence in the Steel Seizure Case, even quoting the erroneous and outrageous line that there is a “poverty of really useful and unambiguous authority applicable to concrete problems of executive power.”  I am tempted to echo Lady Margaret Thatcher here, and to slam down a copy of Jackson’s concurrence on the table, saying “This is not what we believe!”'"

I've been puzzling over this issue in my book on the Youngstown concurrence. Justice Jackson's opinion is anti-originalist (not entirely, but mostly). Yet no Justice has ever criticized his reasoning. Indeed, the Court just doubled-down on what he said. What's up Doc?

Maybe the contradiction between originalism and Justice Jackson's opinion just needs more time to become clear. But that seems wrong: it's a pretty obvious tension.

Another thought is that Chief Justice Rehnquist and Chief Justice Roberts strongly supported the opinion. Rehnquist because he was Jackson's law clerk when the concurring opinion was written. Roberts because he was Rehnquist's law clerk when Dames & Moore was written. So there is a nostalgia halo of sorts around the opinion for these two leading conservatives. Granted, neither was/is an originalist, but you could call them fellow travelers that might influence others. That's not an entirely satisfactory answer either. 

Maybe there is something about executive power questions that appeals to the more pragmatic spirit of Justice Jackson's work. Judges may not like an originialist straightjacket when they face high-profile fights between Congress and the President.

You could say that this problem falls into in a zone of twilight.

Posted by Gerard Magliocca on July 25, 2024 at 03:53 PM | Permalink

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