The Corner

Re: Recuse or Lose

Jonah, that was definitely a different era in terms of sensibilities about recusal.  Relatedly — and equally fascinating.  In Jack Goldsmith’s book, The Terror Presidency, he tells the story of Ex Parte Quirin, the 1942 case involving the German saboteurs in which the Supremes upheld the POTUS’s power to try enemy combatants by military commission — including an American citizen captured inside the U.S.  According to Jack, FDR told his AG, Francis Biddle, that he had no intention of releasing them even if the Supreme Court issued a writ of habeas corpus.  Jack goes on to write:   

“That would be a dreadful thing,” Chief Justice Harlan Fiske Stone said when he learned that Roosevelt had threatened to execute the Nazis regardless of what the Supreme Court decided.  Within a few days, the Court upheld the military commission’s legality.

 

The Court’s decision was a unanimous per curiam opinion announced by Stone.  It was announced days before the prisoners’ execution but not released to the public until months later.  The whole ordeal – from capture of the combatants in late June until execution in early August took about six weeks.

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