Deficiency in Foreign Policy Analysis:

Recognition of a Role for the Judiciary in Foreign Affairs

by Riaan Eksteen PhD*

to be presented to the Session on “Congress, the Presidency and Courts” during the Round Table discussion of “Separation of powers in Foreign and Domestic Policy” at the

51st Annual Meeting of the Northeastern Political Science Association, Philadelphia, Pa,

7 November 2019.

 

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Abstract

Foreign policy analysis (FPA) has long neglected the judiciary’s influence on foreign affairs. Scholars have tended to focus on the role of the two political branches — hence FPA’s state-centrism orientation. Academic studies on foreign affairs confirm this omission. Hence the research question addressed by this paper is the following: what is the role of the judiciary in foreign affairs and what precisely is its influence? The methodology employed to address this topic is the case study method buttressed by an extensive review of the literature.

The paper begins by illustrating the vacuum on this topic in the FPA literature. Secondly, it analyzes consequential SCOTUS decisions that underscore the extent of the Court’s engagement with foreign policy-related issues. Thirdly, it explores the significance of the inquiry for FPA. Given FPA’s interaction with these issues it is imperative that due recognition is accorded to the judiciary for the role it plays.

The executive can no longer assume that its actions will not be scrutinized and evaluated constitutionally. Presidential decisions often stem from overreach, especially in matters with foreign affairs implications. It has become increasingly apparent over the years that the President is not immune from rebuke. Even Congress has been reprimanded for injudicious action pertaining to foreign affairs. As the only constitutional interpreter and consequently a vital compass, SCOTUS has become a de facto element in US foreign affairs. The Court has an increasing relevance and influence in foreign affairs and its impact is incontrovertible. The conclusion is that due recognition of this role is long overdue and has to be addressed in the repacking of the FPA toolbox.

*Author of the recently published book: The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs. . https://madmimi.com/s/960cbe

Currently Senior Research Fellow at the Department of Politics and International Relations in the Faculty of Humanities, University of Johannesburg.     reksteen@swakop.com

The full text is available with this link:

http://www.riaaneksteen.com/deficiency-in-foreign-policy-analysis-recognition-of-a-role-for-the-judiciary-in-foreign-affairs/

 

 

Introduction

This presentation concentrates on the USA and the lack of recognition of the role of its judiciary in foreign affairs — something that is still noticeable in Foreign Policy Analysis (FPA) literature. FPA has to move away from focusing on the two political branches of government, and accord due recognition to the judiciary and its increasing relevance and influence in respect of foreign affairs. This focus, encapsulated in the concept of state-centrism or a state-centered orientation, has been FPA’s gravitational force for too long.

The FPA toolbox has identified new actors who are now involved in the foreign policy-making process. They must be acknowledged in the “repacking” of that toolbox when a new path in FPA thinking and analysis has to be forged. The judiciary is certainly not an actor to the same extent and significance as the other two branches of government. However, this neglected actor does have an influence of consequence when it comes to foreign affairs. Its place in the toolbox is more than justified. It should therefore be given its due weight in the foreign-policy making process and be recognized for its role in foreign affairs. This recognition in turn results in reshaping existing frameworks for the analysis of foreign policy by making due allowance for the role of the judiciary in influencing the decision-making process in foreign affairs.

Many judicial actions by SCOTUS directly and indirectly affect foreign affairs. They are no longer confined to single, isolated cases, but have become widespread. The point is not whether the judiciary has a role to play in foreign affairs, but rather how much influence it exerts. It has become a factor of standing and consequence in foreign affairs in its own right. It may appear small, but its significance is not. During the years of this century the relationship between the judiciary and foreign affairs has taken on added rather than diminished significance.

Fletcher quite aptly observes that SCOTUS serves as an “architect in (re)defining executive unilateral powers in foreign policymaking”.[1] The Court has become emboldened to confront

executive overreach in foreign affairs and has pronounced on it. That determination of the

Court has become too noticeable to ignore. As the constitution guarantees the judiciary to be the most important check on the legislative branch and on unbridled power by the executive branch, SCOTUS has earned itself a distinguished role in the foreign affairs of the USA by fulfilling that constitutional responsibility.

What follows illustrates that there is good reason to expect FPA to make due provision for the role of the judiciary in analyzing foreign policy. Adequate evidence is submitted to substantiate the conclusion that the judiciary should therefore be given its due weight in the foreign-policy making process and be recognized for its role in and consequential influence on foreign affairs.

New Era for FPA

FPA spans a relative short period of less than 50 years. In the era of the Cold War, when FPA focused on the concept of state-centrism the exclusion of the judiciary was not questioned. Faced with creeping irrelevancy, FPA adjusted its outlook in order to remain of consequence in the post-Cold War era, when new circumstances entered the realm of foreign affairs. Yet, the amount of FPA literature focusing pertinently on any aspect of the judiciary indeed continued to be very limited. The literature still dealt overwhelmingly with FPA’s state-centrism whereby the approach to decision-making in foreign affairs focuses on the two political branches of government. The few studies that do mention the judiciary and foreign affairs have done so rather superficially. Seminal works on FPA all highlight recurring themes, such as state-centrism in FPA’s approach to foreign affairs. That proposition became a set pattern and served as a commonality between the studies. In fact, the judiciary’s role and an influence on foreign affairs, are not dealt with substantively. The intellectual progression stops short of coming to a logical conclusion and forging a new path in FPA thinking on and analysis of the judiciary’s role in foreign affairs.

That inherent weakness exposed FPA’s vulnerability. In a critical evaluation of these works that make up the body of the FPA literature it became clear that a new interpretation has to be formulated given the increase in prominent rulings by SCOTUS impacting on foreign affairs. In a way, FPA started opening up to new challenges when it began giving due recognition to the impact of domestic affairs was beginning to have on foreign affairs. However, despite some adjustments FPA continued to pay little, if any, attention to the judiciary. No in-depth analysis of the judiciary was forthcoming. When the full life-span of FPA was analysed and evaluated this vacuum became conclusively evident. Instead of filling this gap its overwhelming attention remained focused on the two political branches as the only actors of consequence when it comes to foreign affairs.[2]

Over the past two decades, FPA started to accept that for its own survival it had to be more open to other significant actors.[3] In recent years, this view gained currency and credibility. Several leading academics endorsed this new approach.[4] Hill regarded FPA as a very “useful frame of analysis” as it entered “a new phase of study”.[5] Morey and Radazzo remain critical that the majority of studies on US foreign affairs unfortunately ignore the role of the judiciary — focusing instead on the behavior of the other two branches.[6]

What has turned the tide?

In the USA there has been an increase of judicial power since World War II.[7] So when Vallinder discusses the expansion of that power he has in mind the infusion of judicial decision-making into the political arena where it has not previously been recognized.[8] Especially during the past few decades, there has been a substantial growth in the reliance on the judiciary to deal with fundamental questions of political significance, including ones involving foreign affairs.[9] Malir considers the judiciary’s impact on foreign affairs as the “judicialization of international relations”. His firm opinion is that the judiciary plays an important role in contemporary international relations — to the extent that these relations are actually judicialized. With that extension the role played by the judiciary has obviously increased its potential to impact on international relations and the functioning of the international system.[10] The judicialization of politics has become an established concept[11] with a global reach.[12]

A new FPA-generation emerged from the ashes of the Twin Towers on 9/11. The world was now in a profound crisis, leaving international relations infinitely more complex.[13] The USA was shaken to its core. By that time foreign affairs was already faced with the reality of globalization in all of its manifestations, and its consequences also caught up with the foreign policy establishment. The latter was unaware and ill-prepared to face all the fundamental changes brought about by 9/11 alone. New realities dawned on the world and Eckes reiterated what has become the hallmark for the new generation of FPA analysts: the internal and the external have become increasingly interlocked.[14] For foreign-policy decision-makers it was no longer possible to ignore domestic imperatives in assessing international developments and formulating responses to them. As national security started to feature also more prominently in issues bearing on foreign affairs, it has become imperative to understand this concept comprehensively. The importance of achieving this necessitates an in-depth discussion of the concept and how it is now inextricably part and parcel of domestic concerns and hence of foreign affairs as well. The concepts of national interest, national security, domestic politics and foreign policy have by now become intertwined. With SCOTUS placing the concept of national security squarely and firmly in its decisions, the Court through its actions has become a role player in defining issues vital to foreign affairs. Justice Stephen Breyer duly recognizes this eventuality: issues that were once almost exclusively of local concern are now required to be addressed by the judiciary as foreign affairs issues.[15]

What has lately become clear is that, while interest in FPA has grown because the questions being asked in FPA are those for which answers in the post-Cold War era were most needed, there is no longer a stable and predictable system in the international arena.[16] That predicament has intensified with the emergence of terrorist groups like al-Qaeda and ISIS. Seldom has a truer word been spoken that so aptly applied to any current evaluation of foreign policy and FPA research than Hermann’s observation in 1988 that it is not surprising that many realists have abandoned the high ground of the macro-level and have come down to the trenches of real political analysis.[17]

Repacking the FPA Toolbox

FPA is all about the foreign policy-making process. Until recently, one of the glaring gaps in FPA has been the absence of proper attention devoted to the nature, structure, and impact of the judiciary. Unlike public opinion, which can be manipulated, the contribution of the judiciary to the process always comes by way of pronouncements that leave indelible imprints and enduring consequences. The judiciary is founded on the Constitution. This means that the judiciary is in effect part of governmental structures.

In accommodating more actors and acknowledging their respective roles in the foreign policy-making process, FPA has come of age. Focus is now placed on the actors and their roles in influencing that process up to the point of formulation.[18] When the FPA toolbox is repacked it will show that FPA can no longer only recognize the two traditional actors. Most importantly, it must start recognizing new actors who have been identified and who are now part of the policy-making process. Changed international circumstances, coupled with domestic and foreign affairs that are now more intimately interconnected, have ensured the involvement of additional groups in foreign affairs to play a role and exert an influence that was not recognized previously.[19] In this latter respect, it has become evident that the judiciary is part of that process and should have its justifiable place in a repacked toolbox.

The deficiency in FPA that has been identified requires attention with the repacking of the toolbox. Through that identification process, rich information has been gathered about foreign policy actors, their environments and preferences and the decision-making processes. Without this information it is not possible to fully understand actions taken in the international arena. The repacking of the toolbox illustrates the important impact of decisions at all stages of the policy process, from getting on the agenda through negotiations, to ratifications and implementation. With these basic ground rules and parameters set, the next step is to identify and scrutinize these actors, their behavior and their motivations. Only by repacking that FPA toolbox could the pivot on which FPA has hinged for many decades be exposed. Hudson and Vore stepped up to the plate by re-evaluating the theories and concepts that comprised the FPA toolbox. They warned that it was important to save those that have proven useful, change or discard those that have not, and address the gaps that have arisen.[20] Risse is convinced that with governance on the research agenda the exclusive focus on the state in FPA will diminish and other actors will be revealed.[21]

As the world grows more complex, interdependent and filled with uncertainties the executive branch faces an increasing dilemma in formulating foreign policy. More parts of the system of government are now involved in the foreign policy-making process. Increasing numbers of agencies, organizations and institutions have developed some interest in and insist on being involved in what happens in the international arena. This has inevitably contributed to the end of the dominance by the executive. Foreign affairs are no longer the exclusive prerogative of the executive.

In recognizing the growing judicial power of SCOTUS, Ura and Wohlfarth argue that the Court is increasingly becoming a celebrated player in national policy making.[22] Its influence is not confined to domestic affairs, but very much includes foreign affairs as well, with its power to review legislative and executive decisions. The conclusion is thus reached that the player whose role in US foreign affairs has most frequently been overlooked is not Congress or the President, but the judiciary. With the judiciary possessing the authority to interpret the Constitution, SCOTUS is empowered to define the parameters and boundaries within which the political branches can and must operate. Despite this substantial impact on foreign affairs little scholarship exists on judicial influences in the conduct of foreign affairs.[23]

The presence of the judiciary in the FPA toolbox is thus justified. It means that the judiciary should be given its due weight in the foreign policy-making process and recognized by FPA for its role in foreign affairs. The judicial branch is certainly not an actor to the same extent and significance as the other two branches in foreign affairs. However, the judiciary is a factor, and as such has an influence of consequence when it comes to foreign affairs.

 

How and Why SCOTUS is Important to FPA

The role of the judiciary is to contain overreach — be it in domestic or foreign affairs, be it by the legislature or the executive.[24] The judiciary may seem uninterested or uninformed about foreign affairs, but it is a powerful force in holding these two branches, especially the executive, accountable and keeping them accountable. Collins examines how much validity there still is in the principle that in foreign affairs the executive and the courts should speak with one voice.[25] From case studies it is clear that the judiciary does not hesitate to embarrass the executive for its conduct in foreign affairs if there is overreach in that field.[26] What is important to keep in mind is that the parameters the judiciary sets for the executive are constitutionally founded and sound, and apply equally to foreign affairs. Furthermore, SCOTUS is determined to hold both political branches, but especially the executive, accountable and keeping them accountable.

It is the aim of this presentation to illustrate how the judiciary’s role in foreign affairs has evolved and grown over the years up to the point of recognition. As a co-equal branch of government its effect on foreign policy has increased lately — quite often by way of constraints placed on the executive in handling foreign affairs. SCOTUS does not function in a vacuum. Because it is part of an integrated constitutional system, its decisions must be viewed in this broader context. In some areas, the Court can be regarded as a lead policy initiator. In other areas, the Court fills in the gaps of policy created in the legislative and executive branches. In both instances, the Court’s work is influenced by and in turn influences the other two branches of government, as well as the interests and opinions of the American people.[27]

Over the last several decades, the Court has become more interested again in deciding fundamental questions, policing the federal system and overseeing the separation-of-powers system. From the first decade of the 21st century, that trend has continued. SCOTUS is now a key player in the legal controversies about presidential power during war and peace by exercising control over aspects of the President’s actions in the field of foreign affairs.[28]

Former Justice Arthur Goldberg captures the essence of SCOTUS as follows:

The failures of the other branches of government had left the judiciary with the task of fulfilling the Constitution’s promise of equality in our representative system.[29]

And this holds true not only in domestic matters, but also in foreign affairs. In recent years, the Court has demonstrated in no uncertain terms that it is no longer that Court of the past — also when it comes to foreign affairs. In the two Zivotofsky cases[30] the Court was faced with particularly thorny foreign policy issues. After 82 years SCOTUS declared in the second case specific dicta from Curtiss-Wright[31] to be of no consequence and rejected them. During the past 15 years SCOTUS has systematically jettisoned its traditional foreign affairs functionalism in favor of formalism. A major jurisprudential shift developed in SCOTUS’s approach to analyzing and applying separation-of-powers questions.

The message conveyed in recent decisions by SCOTUS is a powerful reminder that actions of the executive branch designed to specifically enhance national security and conducting foreign affairs are not immune from judicial scrutiny. This is the all-encompassing declaration SCOTUS has delivered to the executive in its handling of foreign affairs: it is beyond question that the judiciary retains the authority to adjudicate constitutional challenges to executive action. And foreign affairs are not excluded from this adjudication. That influence is now also felt in the foreign-affairs domain of government policy.

In domestic affairs, the judiciary is credited with being the constitutional compass without which the executive can of course stray. It forces the executive to stay focused and act lawfully. The valid question that arises is: why not in foreign affairs? SCOTUS itself has in recent years answered that question. It started to give due weight to foreign affairs, which translated into an influence in the foreign policy-making process. It is important that adequate attention is devoted to this development.[32] The concept of policy-making is central to any understanding of SCOTUS. It is therefore necessary to illuminate its judicial policy function.[33] Ura and Wohlfarth speak of the growing judicial power of SCOTUS. They maintain that the power the Court thus exerts has already become a prominent and institutionalized component of government seeking to control matters at the heart of contemporary politics.[34] These two authors regard SCOTUS as increasingly becoming a celebrated player in national policy-making by influencing an array of important policy matters.[35] It is thus clear that this influence is no longer confined to domestic affairs.

From its inception, the Court had been involved in issues of great importance to the country and its foreign affairs. To this day, it continues to have an impact on foreign affairs. The confidence with which SCOTUS performs springs from its long-held position that it remains the ultimate expositor of the constitutional text.[36] In performing that task the Court’s decisions define the parameters and boundaries within which the political branches can and should operate — in domestic affairs and most definitely also in foreign affairs.

Once this fact is accepted, the following conclusion is reached: SCOTUS has become a de facto part of US foreign affairs. The Court, like the other two branches of government, is now involved in issues that directly change and shape the relationship of the USA with the world.[37] And as the Justices decide these cases, they are doing as much as anyone to influence the fortunes of the USA in an age of global terror and economic turmoil with the consequential impact on the country’s foreign affairs.

The influence of SCOTUS on government policy is important, but the Court’s impact on society as a whole is even more significant.[38] Suffice it to draw attention to two particular epoch-making decisions and their accompanying consequences. The first ruling changed the USA forever. In 1954, with the rise of the civil rights movement, the case of Brown v. Board of Education[39] served as a guiding light for all future generations. With that ruling SCOTUS — not the President, not the Congress — ended legal segregation in the USA. This case did not only do more than any other to solidify the Court’s role in the protection of civil rights, it also enhanced the Court’s standing in the eyes of the public from its humble beginnings to its preeminent institutional standing today.[40] And with the second ruling, the Court again gained kudos: it reached the unanimous decision on 24 July 1974 ordering President Richard Nixon to deliver tape recordings. He obeyed the ruling.[41] Then, when realizing that he would be impeached, he resigned on 9 August 1974 rather than barricade himself in his office.[42] That decision helped to achieve his removal from office within 16 days, whereas the impeachment process would have lasted for weeks, if not months.

Throughout, SCOTUS has not been timid in wielding its enormous influence by cutting different Presidents down to constitutional size and by exposing and blocking their overreach.[43] These rulings revealed that the true influence of SCOTUS is often greater than the sum of its decisions.[44] The rulings also demonstrated the perils of an executive trying to act beyond its constitutional limits. This firmly endorses Wasby’s observations that no President can expect to escape both judicial scrutiny and reprimand. Justices are prepared — and indeed willing and determined — to keep Presidents within the bounds of the Constitution.[45] SCOTUS will not only demarcate the boundaries of executive power in foreign affairs, but will also police them constantly. That considerable authority of influence it wields is no longer confined to domestic affairs.

Understanding the rule of law and courts in politics and policy-making is inherently complex as the judiciary plays a shifting and complicated role in politics and in policy-making.[46] In reviewing judicial decision-making when the role of the judiciary in foreign affairs is assessed, it is imperative to establish not only to what extent the judicial branch influences foreign affairs, but also how much the executive has been reined in as a result of judicial pronouncements in rulings. The political branch’s foreign affairs discretion is now the subject of scrutiny — no more deference. Failure to scrutinize executive actions will lead to a drastic increase in the power of the executive and that in turn will be contrary to the nation’s interest and the letter and spirit of what established the judicial system in the first place. It will also increase the power of the executive in ways that will discourage it from developing important internal checks on its power.[47]

Thus, while the political branches of government most directly determine outcomes in foreign affairs, the contributions of the judiciary are no less significant. Many foreign policy questions involve constitutional interpretations regarding the authority vested in the executive and legislative branches. Consequently, the judiciary has both evinced and emphasized the unmistakable fact that it has a role to play in foreign affairs.

While it is essential to illustrate why and how SCOTUS has influenced foreign affairs and why the judiciary’s rightful place in the process of foreign policy decision making has to be acknowledged, it is not for this presentation to enumerate the particular cases that have served and underscored this statement admirably.[48] Suffice it to mention the immortal words of Justice Sandra Day O’Connor in the Hamdi ruling when she fearlessly raised the constitutional red flag by warning President George W. Bush that he had no blank check to fight terror when it comes to denying individuals basic rights to which they are constitutionally entitled.

Following the events of 9/11 with their manifold consequences inside and outside the USA, legal minds and political scientists have reflected on this question: how does a country’s participation in a war change judicial behavior? Equally vexing is the accompanying question: is Cicero’s adage of two thousand years ago still valid and justifiable today? His legal principle of “silent enim leges inter arma” — when the cannons roar, the laws fall silent — has been used down the years to emphasize the point that when the security of the state is threatened then do not expect the laws of the land to apply.[49] The mere mention of foreign affairs/national security and the repercussions of these policies no longer guaranteed that the President and his policies would be free from judicial scrutiny. The President could no longer find sanctuary in Cicero’s maxim. The voice of SCOTUS has not been silent. The Court refused to remain silent. The mood of the judiciary has shifted dramatically.   Thereby, SCOTUS reasserted itself — not least of all by influencing foreign affairs.

The interdependence of the world today is reflected in SCOTUS’s case load. That in itself has created new and considerable challenges for the judiciary in that it now inevitably more than before enters the realm of foreign affairs. More than 20% of cases now being heard have an international component. Justices no longer have a choice but to consider international affairs. No branch of government can avoid dealing with global issues anymore. An understanding of the world outside — thus beyond the water’s edge[50] — is critical for the Court in a rapidly globalizing world. Justice Stephen Breyer is emphatic that judicial awareness can no longer stop at the US border — which he also refers to as the water’s edge.[51] In that process, SCOTUS has moved more and more in the direction of greater supervision of the executive and has made pronouncements that have had significance for the foreign affairs of the USA.

With the identification of these previously unknown challenges brought about by this new era, attention has to be paid to globalization and the war on terror from a judicial perspective. The judiciary has appropriately become more of an influence in the US foreign policy decision-making process.[52] The judiciary is not a new actor in foreign affairs: it was a neglected one until recently. Now it can no longer be ignored. There is no longer any reason to keep neglecting the US judiciary’s influence in foreign affairs and FPA has to take this into account in repacking its toolbox.

SCOTUS’s mood has shifted in the past two decade. Restraint, pessimism and concern about overreach by the executive when it comes to foreign affairs are noticible trends embedded in several recent rulings. SCOTUS has begun to deal with this new reality in a decisive manner. It is no longer afraid to speak its mind anymore and to square up to the other components in government. Cohen warns that this reality “with all its implications must be understood and watched”.[53]

Conclusion

Foreign policies are designed with the aim of achieving complex domestic and international agendas. They usually involve an elaborate series of steps in which domestic politics play an important role. Foreign policies are in most cases designed and finalized through coalitions of domestic and international actors and groups. The domestic political environment to a large extent shapes the entire framework of decision-making, also in an international context. That environment includes all laws enacted and their legislative decisions, and government agencies and lobby groups that influence or restrict individuals or organizations in society. Furthermore, domestic politics do play an important role when strategic foreign policy decisions are considered because of the threats anticipated or already executed in connection with national security issues.

The international scene has witnessed two far-reaching events since 1989 — the end of the Cold War and later the commencement of the war on terror. Throughout this period FPA has been subjected to critical scrutiny, which exposed the inherent flaws that have contributed to FPA’s vulnerability. Over time, the characterization of FPA as being a failure and responsible for its own demise became commonplace. The ring-fenced concept of state-centrism, which was the hallmark of FPA during its heyday, no longer served its accustomed purpose. In those days, scholars and academics treated FPA with great respect and did not expose its inherent weakness.

In the recent past, FPA has been criticized for being one-dimensional. Foreign and domestic events have brought changed circumstances. Globalization continues to present its own demands. The dimension of domestic affairs that includes the judiciary has become all-important. The impact of domestic affairs on foreign policy is becoming increasingly more crucial, viz. the travel ban and asylum cases. All of this has resulted in the decision-making unit in FPA changing from one in which the political dimension was the sole actor to one incorporating other entities, and this has occurred in the context of an increasingly blurred distinction between domestic and foreign affairs.

Once the domestic factor was included in FPA the influence of the judiciary became ipso facto an actor that could no longer be ignored. Domestically, the judiciary has placed its stamp on practically every aspect of human endeavor. For that reason alone, it is illogical to ignore, or even try denying, the influence of the non-political branch of government from the foreign policy-influencing equation. For its part, the judiciary has become more vocal and aggressive in taking on cases with foreign policy implications. In its pronouncements, the judiciary has made it clear that it has the constitutional right to be involved. In addition, the judiciary has interpreted its duty as an obligation to keep the executive within constitutional limits and free from overreach — in domestic as well as in foreign affairs. All of this translates into recognition of the judiciary’s role in foreign affairs.

FPA is encouraged to broaden its scope and include new actors — also for the sake of greater understanding and appreciation of foreign affairs. It is not so much a case of new actors falling under the scope of FPA. It is rather actors who have existed all along but who have never been duly recognized as actors of substance whose involvement has powerful consequences in foreign affairs. One such actor is the judiciary. That shift has secured the judiciary a place in the structure of FPA.

The judiciary’s role is not an overpowering one. It is not involved in the decision-making process itself. While no one has ever seriously suggested that the judiciary should make foreign policy, there are no structural reasons why the judiciary should be excluded from disputes pertaining to the conduct of foreign affairs.[54] Its rulings are not applicable to every issue being dealt with in that process. It has never been the design of the judiciary to be that. But it is intimately involved where and when it sets parameters within which the legislative and executive branches can operate.[55] A fact worth mentioning, without belabouring the point, is that none of the Justices involved in the epoch-making decision on abortion in Roe v. Wade[56] had any medical expertise whatsoever. They did what was expected of them — to interpret the Constitution and that led them to legalise abortion. These aspects are surely not lost when it comes to Justices considering cases with foreign affairs implications.

While the judiciary does not formulate foreign policy, does not participate in the foreign-policy decision-making process and does not engage in relations with any foreign entity outside the judicial fraternity, many judicial actions directly and indirectly affect foreign affairs. Its influence on foreign affairs has been established. That role may appear small, but its significance is not.

A new period has now been entered in which the relationship between the judiciary and foreign affairs takes on added rather than diminished significance. Prof. Marijke Breuning, a preeminent scholar of FPA, has made a profound statement.

In concluding my remarks, it is worth quoting this striking observation of hers that she made a few months ago:

Foreign policy analysis, as a field of inquiry, would do well to pay more — and more serious — attention to the role of the judiciary in foreign policy.[57]

 

 

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Malir J (2013) Judicialization of International Relations: Do International Courts Matter? The Lawyer Quarterly, Vol. 3, No. 3, pp. 208-224.

McCaffrey P,  Messina LM (2005) The United States Supreme Court. The H. W. Wilson Company, Washington, DC.

Morey D, Radazzo K (eds) (2009) Fluctuating Domestic Constraints: The Supreme Court and Executive Authority in U.S. Foreign Policy. Annual Meeting of the International Studies Association, 15-18 February 2009, New York, pp. 1-22.

Pacelle R (2015) The Supreme Court in a Separation of Powers System: The Nation’s Balance Wheel. Routlege, New York.

Posner E (2017) America Is Nowhere Near a Constitutional Crisis. Foreign Policy, 26 December 2017.

Randazzo K (2004) Judicial Decision Making in U.S. Foreign Policy Litigation. Paper prepared for presentation at the annual meeting of the Southern Political Science Association, 8-11 January 2004, New Orleans, Louisiana, pp. 1-30.

Risse T (2013) Foreign policy analysis and the governance turn. In: Bynander, F, Guzzini S (eds) Rethinking Foreign Policy. Routledge, New York, pp. 176-185.

Rosenblum V, Castberg A (eds) (1973) Cases on Constitutional Law: Political roles of the Supreme Court. Irwin-Dorsey International, London.

Smith K (2003) Understanding the European Foreign Policy System. Contemporary European History, Vol. 12, No. 2, pp. 239-254.

Ura J, Wohlfarth P (eds) (2010) ‘An Appeal to the People’: Public Opinion and Congressional Support for the Supreme Court. The Journal of Politics, Vol. 72, No. 4, pp. 939-956.

Vallinder T (1995) When the Courts Go Marching In. In: Tate, NC and Vallinder T (1995) The Global Expansion of Judicial Power, New York University Press, New York, pp. 13-26.

Walker S, Malici A, Schafer M (eds) (2011) Rethinking Foreign Policy Analysis: States, Leaders, and the Microfoundations of Behavioral International Relations (Role Theory and International Relations).1st edn. Routledge, New York.

Wasby S (1976-1977) The Presidency before the Courts. Capital University Law Review, Vol. 6, pp. 35-73.

Wells R, Grossman J (1966) The Concept of Judicial Policy-making: A Critique. Journal of Public Law, Vol. 15, No. 2, pp. 286-310.

  

 

SCOTUS Cases

 

Brown v. Board of Education 347 U.S. 483 (1954).

 Boumediene v. Bush 553 U.S. 723 (2008).

Hamdan v. Rumsfeld 548 U.S. 557 (2006).

Hamdi v. Rumsfeld 542 U.S. 507 (2004).

Jesner v. Arab Bank, PLC 584 U.S. ___ (2018).

Kiobel v. Royal Dutch Petroleum Co. cite as 133 S. Ct. 1659 (2013.

Roe v. Wade 410 U.S.113 (1973).

Sosa v. Alvarez-Machain 542 U. S. 692 (2004).

United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936).

United States v. Morrison 529 U.S. 598 (2000).

United States v. Nixon 418 U.S. 683 (1974).

Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952).

Zivotofsky v. Clinton 566 U.S. ___ (2012) cite as 132 S. Ct. 1421.

Zivotofsky v. Kerry 576 U.S. ___ (2015) cite as 135 S. Ct. 2076.

 

Newspapers

The Washington Times, 23 March 2017.

 

Other

SCOTUSBlog, 22 October 2019.

[1] Fletcher 2013, p. 284.

[2] Alden, Aran 2012; Bynander, Guzzini 2013; Farnham 2004, pp. 441-463; Hill 2003; Hill 2004, pp. 143-163; Kaarbo 2003, pp. 156–163; Smith 2003, pp. 239-254.

[3] Walker, Malici, Schafer 2011, p. xi.

[4] Clarke, White 1990; Hill 2003; Breuning 2007.

[5] Hill 2003, p. xvii.

[6] Morey, Radazzo 2009, pp. 1-22.

[7] Barani 2005, p. 55. He defines “judicialization of politics” as a phenomenon aimed at the expansion of the province of the courts and judges at the expense of the politicians and/or the administrators.

[8] Vallinder 1995, p. 13.

[9] Hirschl 2006, p. 751. Examples are the Detainee cases, Alien Tort Statute cases, and Zivotofsky cases.

[10] Malir 2013, pp. 208 and 216-217.

[11] Ginsburg 2009, p. 3.

[12] Ferejohn 2002, p. 41.

[13] Kuchinsky 2011, p.414.

[14] Eckes 2014, p.183.

[15] Breyer 2015, p. 170.

[16] Hudson, Vore 1995, p. 211.

[17] Ibid., p. 212. Hudson and Vore quote this sentence from Hermann 1988, pp. 175-203.

[18] Hermann 2001, p. 47.

[19] Hill 2003, p. 250.

[20] Hudson, Vore 1995, p. 210.

[21] Risse 2013, p. 183. This view of Risse is shared by Bynander, Guzzini, 2013, p. xx.

[22] Ura, Wohlfarth 2010.

[23] Randazzo 2004, p. 3. Fletcher’s recent publication is an important critique. Fletcher 2018.

[24] During the confirmation hearing of Judge Gorsuch to fill a vacancy on SCOTUS, Senator Charles Schumer remarked that the Judge had been unable to sufficiently convince him that he would be an “independent check on a president who has shown almost no restraint from executive overreach”. The Washington Times, 23 March 2017.

[25] Collins 2002, p. 485. He quotes Lord Atkin who famously articulated this principle:

Our state cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another.

Ibid., p. 487.

[26] Ibid., pp. 486 and 499-501.

[27] Pacelle 2015.

[28] Harringer 2011, p. 202.

[29] As quoted by Rosenblum 1973, p. 1.

[30] Zivotofsky v. Clinton 566 U.S. ___ (2012) cite as 132 S. Ct. 1421 and Zivotofsky v. Kerry 576 U.S. ___ (2015) cite as 135 S. Ct. 2076.

[31] United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936), at 320. In that case Chief Justice Sutherland ruled erroneously that the President had broad, undefined powers over foreign affairs by describing the President as “the sole organ” of the government in foreign affairs. For decades the executive pegged its actions in foreign affairs on this pronouncement.

[32] Foyle 2003, p. 170.

[33] Wells and Grossman 1966, pp. 286 and 310.

[34] Ura and Wohlfarth 2010, p. 939.

[35] Ibid., p. 940.

[36] Chief Justice Rehnquist reiterates that many decisions of the Court have unequivocally reaffirmed the long-held position that SCOTUS is “emphatically the province and duty of the judicial department to say what the law is.” United States v. Morrison 529 U.S. 598 (2000), at 617.

[37] This concluding remark is made by Goldsmith, 1997, p. 1715:

As the line between domestic and foreign relations blurs, the continued viability of these and related doctrines as currently understood is uncertain. An important challenge for U.S. foreign relations law is to rethink how its jurisdictional doctrines apply in a world in which ‘foreign relations’ is no longer a distinctive category.

[38] Baum 2013, p. 213.

[39] Brown v. Board of Education 347 U.S. 483 (1954).

[40] National Marquette Law School Poll released on 21 October 2019 shows that US citizens trust SCOTUS far more than the two other branches of government and do not view it as an extremely partisan institution. Of the three branches of government, 57 percent find SCOTUS most trustworthy, compared with 22 percent for Congress and 21 percent for the President. Two other polls — Gallup and the University of Pennsylvania’s Annenberg Public Policy Center — found solid public support for the Court. SCOTUSBlog, 22 October 2019.

[41] United States v. Nixon 418 U.S. 683 (1974).

[42] Posner 2017.

[43] During the Korean war President Harry Truman  miscalculated and suffered a humiliating defeat at the hand of SCOTUS when the Court turned the tide against unbridled presidential power with its decision in   Youngstown Sheet & Tube v. Sawyer 343 U.S. 579 (1952).

[44] McCaffrey and Messina  2005, p. vii.

[45] Wasby 1976-1977, p. 73.

[46] Barnes June 2007, p. 25.

[47] Jinks and Katyal 2006-2007, pp. 1282-1283.

[48] Cases especially noteworthy during the past two decades are those grouped together in particular clusters, viz. Detainee cases (Rasul, Hamdi, Hamdan and Boumediene); Alien Tort Statute cases (Sosa, Kiobel and Jesner); Passport cases (Zivatofsky); and lately the Travel Ban and Asylum cases.

[49] Breyer 2015, p. 15.

[50] Originally this phrase meant that disputes between Democrats and Republicans used to be limited to domestic issues. When there were policy questions involving foreign affairs (i.e., issues that went beyond the US borders, or beyond “the water’s edge”), they would typically defer to the President, put aside their differences, and support him in foreign affairs.

[51] Breyer 2015, pp. 236-237.

[52] Hermann 2001, p. 75.

[53] Cohen 2015, p. 380.

[54] Franck 1991, pp. 66 and 86.

[55] A classic example of such a parameter is that set in Hamdi v. Rumsfeld 542 U.S. 507 (2004), at 536 — no blank check for the President. Justice Sandra O’Connor expands on this: the judiciary “plays a necessary role in maintaining this delicate balance of governance” and to strike “the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat’’. Ibid., at 536 and 532.

[56] Roe v. Wade 410 U.S.113 (1973).

[57] Breuning (Foreword) 2019, p. ix.