[721] Albert L. Sturm, “Emergencies and the President,” II Journal of Politics, 1949, 121, 141. Sturm said: “Since the judiciary handles a mere trickle of the great issues arising in periods of crisis, it has been unable to retain its traditional potency. When the national security is imperiled, the Supreme Court, along with the other branches of the government, becomes a part of the national mechanism for preserving the existing social order.” We doubt that the Supreme Court and the judicial system have adequately been integrated into this effort thus far.
[722] Note, cf., Duncan v. Kahanamoku, 327 U.S. 304 (1946), in which Justice Black on behalf of the majority was careful to rest upon statutory interpretation his 1946 (post mortem) invalidation of certain aspects of military rule in the Hawaiian Islands during the War. Dissenting, Burton and Frankfurter asked the Justices in the majority whether the latter, if obliged to dispose of the case during the conduct of the war, would have reached the same conclusion and whether their holding would have been enforced by the Executive.
[723] Op. cit., p. 131. Rossiter concludes that “As in the past, so in the future, President and Congress will fight our wars with little or no thought about a reckoning with the Supreme Court.... This is a sad moral to proclaim after so long a journey, but it is one that we should have firmly fixed in our constitutional understanding.”
The Supreme Court’s Approach
[724] See Ex parte Merryman, Fed. Cas. No. 9487 (1861), 17 Fed. Cas., p. 144.
[725] Carl B. Swisher, Roger B. Taney, New York: Macmillan, 1936, p. 567.
[726] 4 Wall. 2 (1866).
[727] Ex parte Milligan, op. cit., at pp. 120-21, 126.
[728] Id., at 139.
[729] 327 U. S. 304 (1946).