[John Q. Barrett, a law professor at St. John’s University in New York City, is the editor of Justice Jackson's That Man: An Insider’s Portrait of Franklin D. Roosevelt (Oxford University Press).]

As expected, day one of Judge Alito’s testimony before the Senate Judiciary Committee included mentions—invocations, if not discussions—of Justice Robert H. Jackson. These Jackson-naming moments of yesterday were focused, as Senator Specter had foreordained in his opening statement on Monday, on Jackson’s concurring opinion in the Steel Seizure Cases, Youngstown Sheet & Tube Co. v. Sawyer and Sawyer v. Youngstown Sheet & Tube Co., 343 U.S. 579 (1952), and in particular on Jackson’s “somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, … distinguishing roughly the legal consequences of this factor of relativity.” (Those are Jackson’s words.) Judge Alito, in exchanges with Senators Specter, Leahy, Feingold and Feinstein, invoked these Jackson “groupings” and indicated that he would follow and employ them.


Judge Alito did not explain, however, how Jackson’s framework would apply to either of the concrete situations that his questioners raised (torture methods of interrogation; National Security Agency data collection). Indeed, neither Judge Alito nor his questioners discussed how Justice Jackson had applied, and thus how he elucidated by demonstration, his framework in holding President Truman’s 1952 seizure of the steel mills to be unconstitutional. They also failed to discuss any other aspect of the Steel Seizure Cases. These exchanges thus suggested that Judge Alito and his interrogators all are more familiar with Jackson’s Youngstown opinion at the level of its name and it being “good” analysis than they are with its particulars and its Supreme Court applications at that time, since then, and potentially for the future.

One small sign of this collective lack of deep familiarity or reflection was Judge Alito’s misuse, undetected by any Senator, of a Jackson Youngstown phrase, “zone of twilight.” Jackson used it in his opinion to describe the constitutional location, in terms of lawful power, of presidential action in an area where Congress has neither granted nor denied authority to take such action. Judge Alito, by contrast, used “twilight zone” to describe the constitutional footing of presidential action that is at odds with the expressed will of Congress. Justice Jackson actually had referred to presidential actions of this type as located, constitutionally, where presidential power is “at its lowest ebb”—presidential actions in this category, wrote Jackson, have a lesser constitutional basis than do presidential actions in the “zone of twilight” and they have, working back up through Jackson’s groupings of situations, a constitutional footing that is less solid than do presidential actions that are undertaken pursuant to express or implied authorizations from Congress. But no questioner corrected the Judge or pressed him to explain, beyond the level of invocation, his thoughts on any of these Jackson ideas. (By the way, Adam Liptak (still keeping his eye on discussions of Jackson’s Youngstown opinion) and Adam Nagourney, writing in today’s New York Times, report Judge Alito’s misuse of “twilight zone”.)

I continue to recommend, including to the Senators, actually reading Jackson’s full Youngstown opinion. In its complexity and candor, it addresses many aspects of lawyering, judging and interpreting the Constitution that should be discussed in these hearings, and that Judge Alito could be asked to discuss in detail without putting him in the position of discussing the constitutionality of particular presidential policies that may be challenged constitutionally in the Supreme Court or his present court.