February 26, 2018 Articles

Dissents and the Executive Power: From Nazi Saboteurs to Guantanamo

Dissents can shape future law, as seen in cases dealing with the scope of executive power in times of war.

By Robert A. O’Donnell and Lara Grillo – February 26, 2018

Our last article considered how dissents can survive and continue to shape law. They appeal, as Justice Hughes once described, “to the brooding spirit of the law, to the intelligence of a future day.” This article considers the scope of executive power in times of war, developed in the dissents of Justice Jackson that resurfaced in later decisions, including the Supreme Court’s decision in Hamdi v. Rumsfeld and the Ninth Circuit’s recent opinion in Hawaii v. Trump

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