New in Civitas Outlook: The Supreme Law: A Quarter Century after 9/11

My new essay in Civitas Outlook tries to trace modern-day constitutional law to that fateful day twenty-five years ago.

Every generation has a defining moment. For my generation, it was September 11, 2001. But a quarter century later, more than 30 percent of Americans have no living memory of 9/11. The conflicts in Afghanistan and Iraq have wound down, Guantanamo Bay is mostly closed, and Ground Zero is a museum. Young law students, in particular, might even think that this historical event has no meaningful impact on the law today. Not quite. Indeed, but for September 11, 2001, and the events that followed, constitutional law likely would be unrecognizable today.

Perhaps the most salient connection concerns the Supreme Court’s executive power decisions:

The seeds planted by Bush’s nominations in 2005, and watered with Free Enterprise Fund in 2010, would begin to grow in 2020. In Seila Law LLC v. Consumer Financial Protection Bureau, Chief Justice Roberts, again writing for the Court, ruled that the president must be allowed to fire the single director of the important financial agency. Over the next six years, the Supreme Court would extend the doctrine in two landmark cases that reaffirmed the strength of executive power. Trump v. United States expanded the scope of presidential immunity from the Nixon era. And Trump v. Slaughter at last overruled Humphrey’s Executor v. United States. 

None of these cases were even thinkable in 2001, let alone in 2005 when Roberts and Alito were nominated to the Court. But a straight line can be drawn between the actions taken by Bush in the immediate aftermath of 9/11 and the elimination of the century-old Humphrey’s Executor. Even though President Bush’s terrorism policies would never succeed in court, the expansion of presidential power after 9/11, and the complementary judges that followed, helped solidify the unitary executive theory over the next quarter century. Indeed, these judges also effected a revolution in substantive due process with Dobbs, the Establishment Clause with Kennedy v. Bremerton School District, the Equal Protection Clause with Students for Fair Admission, and more. I’ve described this run of cases as the conservative equivalent of drawing a full house after six decades of folding. 

It may be possible to forget 9/11 itself, but we can never forget the consequences of that day.

I would also commend Justice Kavanaugh’s excellent interview in USA Today about 9/11:

The message Bush communicated to his staff Sept. 12 was: “This will not happen again. This will never happen again in the United States,” Kavanaugh remembers.

“For him … every day was Sept. 12 for the next seven-plus years. Even when he was doing other things and doing all the things of government − economic negotiations, dealing with all the other issues in the world − he felt very responsible for making sure it never happened again,” Kavanaugh said. “And if something did happen, they’d say, ‘Bush, why didn’t you prevent this?’ It was a huge responsibility for him to carry.”

. . .

Having seen 9/11 up close, the weight it placed on the president, and the ability of the country to recover gave Kavanaugh perspective when times get tough.

“People talk about: ‘This is a crisis and that’s a crisis. That was a crisis,'” he said. “America has lots of legal and policy debates, which are important. That’s a different level than what I think we felt on the night of Sept. 11 and the morning of Sept. 12.”

Kavanaugh gets it.