Judicial Modesty in the Wartime Context

“The most important thing we do is not doing,” Justice Louis D. Brandeis noted of the Supreme Court. At the height of the Civil War, the Supreme Court in Roosevelt v. Meyer claimed that it could not review, and therefore let stand, a state court decision upholding the Legal Tender Act (“Act”), a critical wartime measure designed to stabilize the Union economy and fund the Union’s war efforts. In this essay, I suggest that this oft-overlooked case warrants the legal community’s consideration because it implicates a question fundamental to our constitutional system: should the courts decline judicial review—or, “not do”—in order to facilitate government responses to wartime challenges