Courts and Foreign Affairs: 'Their Historic Role'
Abstract
This essay reviews Professor Martin Flaherty’s outstanding and engaging recent book Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs. As the book’s title indicates, Professor Flaherty takes a predominantly originalist/traditionalist approach, arguing that the U.S. Constitution’s text and the Framers’ understanding of it contemplate an active checking and protective role for the courts—particularly in foreign affairs, because foreign affairs offers the greatest risk of abuse by the political branches. Moreover, the book argues, U.S. courts traditionally undertook that role through the late-eighteenth and nineteenth centuries, when courts routinely resolved foreign affairs disputes on the merits, often ruling against the executive branch. Only relatively recently, the account runs, have courts begun to use various gatekeeping doctrines to vindicate growing reluctance to interfere in foreign affairs controversies. The book’s call, then, is for courts to “reclaim their historic role.”
Restoring the Global Judiciary is a particular challenge to those who exalt text, history, and tradition to guide constitutional decision-making. The modern rise of originalism and related approaches has occurred alongside decisions signaling concern over judicial involvement in foreign affairs, and calls for reduced judicial involvement in foreign affairs are often linked with praise for originalist-oriented adjudication. Yet, if Professor Flaherty is right, originalism’s rise should enhance, not reduce, courts’ willingness to constrain the foreign affairs executive.