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The Role of the Courts in Time of War


William C. Banks


December 4, 2014

The role of the courts in judging the actions of government in wartime has ranged from extreme deference to careful probing of alleged government excesses over more than two centuries. The courts’ record has reflected the nature of the armed conflicts the United States has engaged in and the legal bases for the actions at issue. In the aggregate, the courts have served as a necessary counterweight to government overreaching in times of national security crisis. It is easy to underestimate the institutional problems confronting judges who are asked to make momentous decisions in times of national crisis—difficulties of fact-finding and assessing the risks of being wrong, among others. Yet no other part of government is as equipped as the judiciary to anchor the nation to its core values during a storm.

Professor Wayne McCormack (author of the original article) has the following to say about this Response:

“I am delighted that Professor Banks took the time and effort in this forum to delve further into the history of judicial involvement with wartime decisions. I think his and my conclusions are substantially similar. He very nicely sums up that ‘no other part of government is as equipped as the judiciary to anchor the nation to its core values during a storm.’ I have every reason to believe, as did Justice Brennan, that the nation will return to those values as the storm passes.​”


William C. Banks, The Role of the Courts in Time of War, 71 Wash. & Lee L. Rev. Online 169 (2014).