Kermit Roosevelt on the Dangers of Executive Power

Detail from cover of Allegiance

At first glance, Kermit Roosevelt’s novel Allegiance is a thoroughly historical novel. It’s focus is a young man clerking for a Supreme Court justice during World War II. The young clerk becomes aware of conspiracies and begins to doubt the government’s policy of interning Japanese-Americans.

But the novel’s relevance turns out to be more contemporary than at first blush. Roosevelt draws from his own experience in writing about the Supreme Court — he spent time as a clerk for David Souter. He’s also well aware of the political, legal, and societal dynamics about which he writes: he’s the great-great-grandson of Theodore Roosevelt, and is a professor at the University of Pennsylvania Law School.

Allegiance raises questions about the uses and abuses of executive power and the ways in which the Constitution can be interpreted. As such, it’s both a documentation of a particular moment in history and a cautionary tale for the present day. We spoke with Roosevelt about the process of writing Allegiance and the political questions it raises, which remain ever relevant in 2016.

SIGNATURE: The story you tell in Allegiance is about a specific place and time, but also has plenty of contemporary resonances. Did you begin by seeking out a story to tell in this particular period, or were you looking for a time and place where certain legal and political issues could be explored?

KERMIT ROOSEVELT: It all began when the editor for my first novel said he wanted the next one to be set in the Supreme Court. I didn’t want to write about the current Court because I was afraid people would think I was revealing secrets I learned during my clerkship with Justice Souter, so it seemed safer to set it in the past. And then I started looking for a historical moment that had some parallels to our own.

SIG: Cash, the novel’s narrator, is working for the government and is initially on, for lack of a better phrase, the wrong side of history regarding Japanese-American internment. What are some of the challenges of writing a character who is in that position?

KR: I try to write all my characters from an internal perspective — that is, I try to really inhabit them and feel what they would feel. So it’s hard to adopt a perspective that history has proven wrong. In some ways, legal education helps with that, because lawyers are trained to identify the strengths of any position and make the best argument for either side of an issue. That was my main goal — to try to show why someone acting in good faith would have thought the things Cash does, and how he might come to change his mind.

SIG: The repercussions of the executive branch of government overextending its authority in the 1940s are well-known. Between then and now, have there been any other particularly egregious examples of it?

KR: There’s a general pattern in our history of executive branch overreach, and over time it’s produced a much stronger Presidency than we used to have. Sometimes other branches of government push back, which is the way the system is supposed to work. Mostly the Supreme Court — it turns out, in part because of the party system, that Congress isn’t very good at checking the President. The most notorious example is probably during the Korean War. First, President Truman sent troops to Korea without a declaration of war or other authorization from Congress, on the theory that a UN resolution was enough. Then, when labor unrest threatened to disrupt the supply of steel, he told his Secretary of Commerce to seize private steel mills and operate them in the name of the government. The Supreme Court made him give them back.

SIG: You have done pro bono work for a person detained at Guantanamo Bay. Can you foresee a time when you might incorporate this experience into a book?

KR: I don’t know if I would write a novel that was set around Guantanamo, although there are a lot of interesting stories there. The Guantanamo experience did serve as sort of an emotional backdrop for Allegiance, though, in that the protagonist goes through a process similar to what I did: learning all the things the government has done to keep him safe and wondering whether he’s really comfortable with them.

SIG: Your novel was released at around the same time that the musical Allegiance debuted on Broadway. Do you think that this renewed interest in the internment of Japanese-Americans during World War II is due to wanting to know more about that period, or due to a fear that it might happen again?

KR: I think it’s both. On the one hand, the generation of people who were in the camps even as children is now very old, and there’s probably a sense that a lot of knowledge is going to be lost if we don’t make some effort to preserve it now. On the other, there are definitely echoes of the anti-Japanese-American sentiment flowing through our public consciousness now, and we’ve even had people explicitly invoking the detention as a model of the sort of thing that sometimes has to be done in the name of national security. So I think a lot of people — me included — think it’s important to point out that in fact imprisoning the Japanese-Americans didn’t do anything for national security, and many people knew that at the time.

SIG: The Supreme Court and its dynamics have been in the news a lot in recent months. As someone who has had a clerkship there, have you found that there any misperceptions about those dynamics in media reports?

KR: Generally the media portrays the Court as more political than it is. There’s definitely a set of cases where the Constitution doesn’t give clear answers and the conclusions Justices reach line up with their political ideology — though even in those cases I would say it’s not partisan politics determining their votes but something more like a general worldview determining both their politics and their votes. But even at the Supreme Court level, that’s a small minority of the cases, maybe ten percent. In most of the other cases, the Justices are just trying to answer hard legal questions.

SIG: Given your knowledge of constitutional law, are there any circumstances under which you could see some sort of large-scale disenfranchisement and detention happening to a group of American citizens?

KR: The Korematsu decision, which approved the removal of Japanese-Americans from the West Coast, has never been overruled, so we still have the principle that the government can do what’s necessary to protect the country as part of our constitutional law. And actually that’s probably not an incorrect principle. The problem is that when we get scared we respond to imaginary threats as well as or instead of real ones, sometimes people take advantage of our fear to pursue their own profit. So if we get scared enough — if there’s a major terrorist attack in the United States, for instance — I could see similar measures being implemented. I think we’d need a couple of current Supreme Court Justices to be replaced before the Supreme Court would allow it, but it’s all within the realm of possibility.

SIG: A recent profile of you mentioned your next novel will head outside the realm of realism. Has that work been easier than a story like Allegiance that’s grounded in history and real events?

KR: Yes! That’s actually why I chose to go that route. Writing historical fiction ended up feeling very constraining. Before I could invent even the smallest scene of people walking down the hall, I felt like I had to do research to find out what their shoes looked like. So for the next book I decided to make it part autobiographical — so that I would know all the details already — and part fantasy, so that I wouldn’t have to worry about getting facts wrong. It’s been a lot of fun so far.