Henry Weinstein of the Los Angeles Times argues convincingly that U.S. Supreme Court nominee John G. Roberts' "biggest impact on the high court could come in cases on wartime executive authority -- not a right to abortion." Even though "[t]here is no more important issue on the court's docket over the next few years than this one," it "has received little attention so far in the debate over Roberts' nomination."

The article points to a decision by the U.S. Court of Appeals for the D.C. Circuit, in which Roberts joined, holding that, in the words of Weinstein, 1) the administration may "use military tribunals to try those labeled 'enemy combatants' at the U.S. base at Guantanamo Bay, Cuba," and 2) "those combatants had no right in U.S. courts to enforce provisions of the Geneva Convention on the treatment of prisoners of war."

Respected Georgetown Law Professor Neal K. Katyal, an attorney for Osama bin Laden's alleged bodyguard and driver, notes "No decision, by any court in the wake of the Sept. 11, 2001, attacks has gone this far" in respect of governmental authority in times of war.

Given the importance of the constitutional question and the consequences that a Supreme Court case may have on the war on terror and the rights of individuals, some have argued that senators should ask Judge Roberts about the issue. For example, a group of over 100 law professors and other legal scholars signed a letter urging senators to ask Judge Roberts ten questions, one of which is:

In Korematsu v. United States, the Supreme Court upheld the constitutionality of evacuating Japanese-American citizens on the West Coast from their homes during World War II. What lessons do you believe the Court should draw from Korematsu and the World War II experience?

Law professor Eric Muller, however, thinks that asking Judge Roberts about Korematsu would be a waste of time because the decision is almost universally recognized as one of the worst in the history of the U.S. Supreme Court. Instead, professor Muller suggests that senators should ask the following question:

When the United States was at war with Japan, Germany, and Italy in 1942, the Army imposed a dusk-to-dawn curfew along the West Coast for U.S. citizens of Japanese ancestry, but no curfew anywhere in the United States for U.S. citizens of German or Italian ancestry. In Hirabayashi v. United States (1943), a unanimous Supreme Court held that the curfew did not violate the due process rights of the affected Americans.

Was Hirabayashi correctly decided?