Strange Silence: Vietnam and the Supreme Court

Abstract

The Vietnam War, currently the longest and fourth bloodiest conflict in American history, began and ended without one Supreme Court decision on whether the war was constitutional, or whether the question of constitutionality presented a non-justiciable controversy. In sum, the Court never said anything at all concerning the Vietnam War. The review of cases presenting basic questions concerning the constitutionality of the Government's war policies reveals that the Supreme Court had many opportunities to decide these questions, but all petitions for review were refused. The Court's silence during the Vietnam War denied guidance to the lower courts and denied the American people the Court's considered judgment on the constitutionality of this divisive military conflict.