VI. CLOSING THOUGHTS

Writing in the Supreme Court Review almost four decades ago, Dean Alfange, Jr. offered up a compelling critique¹¹³ of the Warren Court's opinion in United States v. O'Brien,¹¹⁴ the draft-card burning case. What struck Alfange as problematic about the result was that it came at the hands of a Court otherwise protective of free-speech rights and that it relied upon unpersuasive reasoning.¹¹⁵ The majority's opinion, in Alfange's view, had "all the deceptive simplicity and superficial force that can usually be achieved by begging the question." ¹¹⁶ What could explain the Warren Court's surprising turn of mind in favor of government suppression of political dissent? Beyond legal niceties, there was but one likely answer for Alfange:

Despite the Warren Court's record of defending the civil liberties of the political dissenter against legislative attack, it coyly chose in this case to accept the law uncritically on its face and to avoid recognition of the manifest congressional purpose. Perhaps the episode serves largely as another reminder of Justice Holmes's observation that "many things that might be said in time of peace . . . will not be endured so long as men fight."¹¹⁷

Once all of the doctrinal dust had settled, what explained O'Brien more than anything else was the largely unstated - the existence of "war." Even over the strong objection of Justice Douglas,¹¹⁸ the Warren Court would not entertain any further investigation into what may have influenced its thinking most. In that light, O'Brien is a cautionary tale of what can go wrong when the judiciary abdicates review over the necessary predicate for abridging a constitutional right.

The O'Brien Court might have dispensed with Justice Douglas's concerns after rebriefing and reargument in the case. And having reached the "declaration of war" question, the result could have been equally problematic insofar as the First Amendment claim failed. Troublesome as that may be, at least such an approach would highlight the fact that free-speech liberties were set aside in the name of war.

For prudential and practical reasons, judges (bowing to Bickel) may be reluctant to pass upon the constitutional character of Executive action, either in the First Amendment context or any other. Nonetheless, the 2004 enemy combatant cases ¹¹⁹ suggest that courts need not be slavish when the Executive endangers fundamental rights in the name of war.