Fifty years ago the Supreme Court stopped President Harry Truman from extending executive power in a time of crisis. Now, Chief Justice William Rehnquist ’52 (AS ’48, AM ’48), Associate Justice Sandra Day O’Connor ’52 (AS ’50), and former Stanford President Gerhard Casper revisit that case as the panel on a moot court.

Dean Kathleen M. Sullivan was dreading the call. She knew that Chief Justice William Rehnquist ’52 (AB ’48, AM ’48) strongly disapproves of moot courts, yet she had to ask him to do one. It was the end of summer 2001-the magical conjunction of the fiftieth anniversary of the Kirkwood Moot Court competition and his 50-year reunion was a year away-when she got him on the line. 

As Sullivan remembers it, she proposed a reenactment of Marbury v. Madison, fully expecting to be turned down flat. “That’s a terrible case,” he responded sharply. “It’s too lopsided, and it should have been dismissed for lack of jurisdiction.” Not surprised but crestfallen nonetheless, the Dean was prepared to thank him and hang up the phone, but he interrupted her. 

“What about Steel Seizure?” Rehnquist asked. 

With that suggestion, the ball was set rolling for the event that is to take place this October 19 at Stanford. For Rehnquist it is a fitting way to mark the anniversary: Not only is it 50 years since he graduated the Law School, but it also is 50 years since the decision in Youngstown Sheet & Tube Co. v. Sawyer, better known as the Steel Seizure case, was issued. And it has also been 50 years since Rehnqllist was a clerk for Supreme Court Justice Robert Jackson, who wrote an eloquent concurring opinion in the case that today remains one of the most quoted analyses on the constitutional limits of presidential power.

Youngstown Sheet & Tube represents the rare moment in American history when the Supreme court stands up to a president. In a 6-3 decision, the majority decided that President Harry Truman did not have the authority to seize the nation’s steel mills to avert a labor strike, despite his claims that the war in Korea demanded that he exercise emergency powers. 

At the time they agreed on Steel Seizure as the 2002 Alumni Weekend moot court case and on the Chief Justice’s participation, neither Rehnquist nor Sullivan had any idea that the questions raised by that case would be so relevant today.

The attacks of September 11 occurred weeks after their conversation, and only months later began the high-profile debate over whether President George W Bush was overstepping the boundaries of his office in waging the new war on terrorism.

Karen Stevenson ’98 has a tough road ahead of her. A Rhodes Scholar and an associate in Los Angeles boutique litigation firm Hennigan, Bennett & Dorman, she will be arguing the government’s case. “What makes you think I’ve got the more challenging side?” she laughs. “Just because the government got hammered the first time?” The opposing counsel is Charles Koob ’69, the chair of litigation at Simpson Thacher & Bartlett. Presiding over the case, along with Rehnquist, will be Justice Sandra Day O’Connor ’52 CAB ’50), who is also returning for her 50-year reunion, and Gerhard Casper, Stanford University President Emeritus and a Stanford Law School professor.

Koob agrees that Stevenson’s task is difficult, but he adds that her cause may be easier to argue today than in 1952, if one considers the political context. Truman’s ratings in the polls had reached an all-time low. The war in Korea was going badly and the economy was sputtering. “Public opinion had turned against him,” Koob explains. “Some people think the decision was more directed at Truman than at the power of the presidency.”

Neither Stevenson nor Koob would tip their hands on their strategies, but they’ll have no shortage of points to discuss. While the government clearly lost, just what the case tells us about the nature of the presidency-whether there’s some reservoir of inherent executive power beyond what’s clearly stated in the Constitution and how exactly the limits should be drawn-is far from clear. Each of the justices in the majority wrote a separate opinion, and Justice Felix Frankfurter went so far as to say, “The issue before us can be met, and therefore should be, without attempting to define the president’s power comprehensively.”

Justice Jackson’s opinion was nuanced. He wrote that the Court was obligated to intervene, but that the reality of politics might on other occasions transcend a strict reading of the Constitution’s limits on the president’s power. “There is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain,” he warned.

The decision reached by the Law School panel could be a bit anticlimactic. In deciding the Steel Seizure case, the Court did not necessarily have to consider the constitutional question, as there was an alternative to injunctive relief. For instance, the case could have been sent to the federal court of claims, and the government could have been ordered to reimburse the owners of the steel plants instead of the Supreme Court ruling that the seizure was unconstitutional. “The government had a strong case that there was no irreparable harm and that there was an adequate remedy,” Koob says.

Still, Koob and Stevenson agree that it’s unlikely that the panel is going to want to spend the time discussing the niceties of injunctive relief, particularly when one of the great issues of the nation’s Constitution is before them.

Indeed, Rehnquist was likely present when Jackson was writing his opinion, though Rehnquist has said that it was entirely Jackson’s-not his own. When he comes to Stanford and presides over the case, he may well reveal how his views differ from those of the justice for whom he clerked.