Judging civil liberties during crisis

Abstract

During times of national crisis, governments tend to sacrifice civil liberties in favor of policies that promote safety and national security. But how do the courts respond to crisis? When rights-limiting policies come into conflict with civil liberties, the disputes are taken to the courts. Previous research on U.S. courts has found supporting evidence for what has been characterized as the crisis thesis --- that is, that when a nation faces crisis, the courts are less supportive of civil liberties claimants and criminal defendants. The U.S. Government has often utilized rights-restrictive policies during periods of national crisis to restore order and ensure public safety, often with the support of large majorities. But, the U.S. Supreme Court, as a court of last resort, has the option to exercise judicial review. The Court is then forced to balance civil liberties against the competing government interest in preserving national security. In this present study, I extend research on crisis decision making in courts by looking at U.S. Supreme Court decision making during the 1994-2004 terms of the Court, finding that the Court responded to the 9/11 crisis by becoming more conservative in civil liberties and criminal appeals cases. But this effect was short-lived, impacting outcomes only in the 2001 and 2002 terms of the Court. I then ask whether the crisis thesis is generalizable beyond the American judicial context. To address this question, I developed a new data source of criminal appeals cases decided by the Supreme Court of India between 2000 and 2011. Results from this analysis confirm the crisis thesis as a generalizable theory for how courts respond to national crisis.