The question of how courts respond to national emergencies or crises is of profound importance in a democratic society. In the United States, the federal courts exercise the power of judicial review, giving them the authority to invalidate acts of legislatures or executives as unconstitutional. Given this, those groups who wish to ensure that government does not infringe on valued liberties during times of crisis often look to the federal courts to serve as a limitation on legislative and executive overreach.

What role could judicial review play in situations of dishonest corporatism? How can courts determine when government implementers have bargained successfully to achieve the most, but less than full, enforcement for the least cost, particularly in situations where the government seeks, overtly or covertly, to bargain away as much as it can because it really doesn’t want to enforce?

A challenge for any democratic republic is to establish modes of governance that can effectively defeat or mitigate national security threats while also preserving freedoms and public accountability. To many, especially during national security crises, courts are expected to act as guardians of liberty and the boundaries of state power. 

Report of the 2007 Annual Lecture in Law and Society, delivered by Cass Sunstein.