The Role of the Judiciary in Foreign Affairs To Be Duly Recognised, with Special Reference to the Supreme Court of the USA
| Author | Eksteen, R. |
| DOI | https://doi.org/10.47348/SLR/2021/i2a8 |
| Published date | 29 September 2021 |
| Date | 29 September 2021 |
| Citation | (2021) 32 Stell LR 330 |
| Pages | 330-361 |
https://doi.org /10.47348/ SLR/2 021/i2a8
330
THE ROLE OF THE JUDICIARY IN FOREIGN
AFFAIRS TO BE DULY RECOGNISED, WITH
SPECIAL REFERENCE TO THE SUPREME
COURT OF THE USA
Riaan Eksteen
BA BA (Hon) MA PhD
Senior Research Associate at the Department of Politics and International Relations,
University of Johannesburg
Abstract
The judiciary’s inuence on foreign affairs has been neglected for too
long as the focus has been conned to the role of the two political branches
– thu s, a state -centrism orie ntation. Studies on foreign affairs con rm this
omission. Hence, the que stion: what is the role of the judiciary in foreig n
affairs and what precisely is its inuence? Conse quential decisions by the
Supreme Court of the United S tates (“SCOTUS”) underscore the extent of
the court’s engagement with foreign policy-rela ted issues. While the political
branches of government m ost directly determine foreign- policy outcomes,
the contribution of the cou rt by way of its relevan ce and inuence is no
less sig nicant. Its impact is incontrovertible. T he executive can no longer
assume that its action s in foreign affairs will not be scrutinised and e valuated
constitutionally. Preside ntial decisions often stem from overreach , especially
in matters with implication s for foreign affairs. Over the years, it has become
increasingly apparent that th e President is not immune from rebuk e. SCOTUS
is the only constitut ional interpreter and conse quently a vital compass.
The result is that the ex ecutive has to bend to the ju diciary. The latter will
not accommodate the forme r when its judicial mandate is to inte rpret the
Constitution in order t o make clear what the execut ive has decreed, however
unpalatable that may be to the e xecutive. The resp onse by SCOTUS is no
longer conned to single, isolated cases; it has become widespread. The court
no longer shies away from displa ying judicial power when it is faced with
cases dealing with foreign affairs. W hat SCOTUS has declared unequivocally
is that when the political branch es are allowed to switch the Constit ution
on or off at will, this will lead to a regime in whic h the executive, and n ot
SCOTUS, says what the law is. T his article concludes that the recognition of
this role of SCOTUS in foreign affairs is long over due.
Keyword s: constitutional prin ciples; foreign affairs; human rights; judicial
power; presidential overreac h; separation of powers
(2021) 32 Stell LR 330
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
Surprisingly, the majority of studies on US foreign policy ignore this crucial role of the judiciary.1
1 Introduction
This article focuses on scholarly liter ature’s lack of recognition for the role
of the judiciary in foreign af fairs, with special reference to the position in the
United States of America .2 This article submits that state-centrism or a st ate-
centred orientation has been a gravitational force for too long. The focus,
therefore, is to move away from t he two political bra nches of governme nt
to accord due recognition to the jud iciary and its incre asing relevance and
inuence in respect of foreign affairs. Moreover, new role players who have
come to the fore and who are now i nvolved in the foreign policy-making
process mus t be acknowledged. Althoug h it is recognised that th e judiciary is
certain ly not a role player to the same extent and as signicant as the other two
branches of govern ment when it comes to foreign af fairs, this neglected role
player does have an inuence of consequence when it comes to foreign affairs.
From a study of the judg ments delivered by the Supreme Court of the Un ited
States (“SCOTUS”), several factors have emerged which mana ged t o create
a roa dmap for the executive and the judiciary to use when their res pective
spheres of power overlap in cases concerning foreign affairs. This map,
however helpful, is never fully completed and must be carefully employed
and developed going forward, because a shift in this delicate balance of power
too great in either direction ca n have serious implications for t he executive’s
ability to execute foreign-policy objectives and for claimants’ abilit y to have
their day in cour t.3
Probably the most imp ortant issue to unders tand about SCOT US is
its place in the body politic of the USA and in inue ncing policy decision
making. It is also important to understand the impact of all of this on foreign
affairs. SCOTUS’s decisions deal with issue s of p rofound consequence for
the sepa ration of constitutional powers and the balance between liberty and
security and how these conce pts relate to foreign affairs. The literature on
SCOTUS e shes out all-impor tant concepts, such as separation of powers;
checks and balances; judicial review; the political q uestion do ctrine; and
deference to the executive. Knowledge of these key concepts and other equally
important principles, and their a pplication by SCOTUS, are indispensable
for comprehending the US judicial system from which an appreciation of
SCOTUS’s role in foreign affai rs can follow.
For more than two centuries, the legislative and executive branches have
used various tools at their disposal to challenge the judicial branch and its
exercise of power. A nd yet, despite this persistent questioning of the court’s
legitimacy and role, its place in the US system now appears more xed and
1 KA Randazzo Defend ers of Liberty or Ch ampions of Secur ity: Federal Courts , the Hierarchy of Just ice,
and U.S. Foreign Po licy (2010) 3
2 For the purpose of this ar ticle, the terms “ judiciary” and SC OTUS are used inte rchangeably
3 CH Curlet “Shou ld a Stat ement of I ntent matt er? Judging Executive B ranch Foreign Policy Conce rns”
(2010) 44 Georgia LR 1063 1096
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
331
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
more important than it has ever been. Today, an observer of government
policy would sca rcely recognise the SCO TUS of the early ninetee nth cen tur y.
The court has changed dramat ically, evolving into an institution of signicant
status in the context of foreign affairs. It has assumed the mantle of judicial
power and exercises authority over a vast and diverse policy domain – domestic
as well as foreign affairs.4 Far from stand ing on the constitutional side lines ,
SCOTUS has for most of its histor y, by way of its r ulings, contributed to the
juridical debates with in the foreign-affairs establishment of the USA.5
As SCOTUS’s inuence has b ecome more and more justied , it should be
given its due weight in the foreign-policy maki ng process and be recog nised
for its role in foreign affairs. This recognition, in tur n, should result in
reshaping ex isting frameworks for the analysis of foreign policy by making
due allowance for the role of the judiciary in i nuencing the decision-
making process in foreign affairs. Over the past six decades, the role of the
US President in foreign affairs ha s been i nuenced and changed by deeply
traumatic events in the country’s history – the Vietnam War, Watergate, and
recently the multifaceted c onsequences broug ht about by the events of 11
September 2001 (“9/11”) and by globalisation. T he rst two events caused
Congress to attempt to recaptu re its constitutional role in foreign affairs. The
latter two resulted in SCOTUS becoming more involved and vocal in limiting
any excess of presidential power in the eld of foreign affairs, t hereby giving
substance to the role of the cour t in foreign affairs.
Many of SCOTUS’s judicial actions directly and indirectly affect foreign
affairs. They are no longer conned 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 inuence it exerts as it has become a factor of
standing and cons equence in foreign affairs in its own right.
Fletcher quite aptly observes that SCOTUS serves as an “archite ct in
(re)dening executive unilateral powers in foreign policymaking”.6 On the
one hand, the c ourt has become emboldened about confronting executive
overreach in foreign affai rs and has pronounced on it. The determinat ion
of the court in this regard has become too noticeable to ignore. As the
Constitution guarantees the judiciary to be the most impor tant check on the
legislative branch and on unbr idled power by the executive branch, SCOTUS
has earned itself a distinguished role in the foreign affairs of the USA by
fullli ng that constitutional responsibility. On the other hand, SCOT US has
ruled lately on several issues that have approved former President Trump’s
policies on imm igration, visa restrict ions, asylum and border control.7 All of
4 KT McGuire “The Instit utionalizati on of the U S Supreme Cour t” (2004) 12 Political Analysis 128 128
5 RW Bland The Bla ck Robe and the Bald Eagle: T he Supreme Court a nd the Foreign Policy of th e United
States 1789-1953 (1996) 4
6 KL Flet cher The Collision of Polit ical and Legal Tim e: Foreign Affairs an d the Supreme Co urt’s
Transformation of Executive Authority (2018) 284
7 R Wolf “Preside nt Trump’s immigration c rackdown inunda tes Supreme Cour t” (27-02-2020) USA To day
floods- supreme-cou rt/4794704002/> (access ed 20-08-2021)
332 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
these p olicies ca rry distinc t imprints of a spects of foreign affairs and carry
consequences for the USA’s relations with affected cou ntries.
What follows illustrat es that there is good reason to argue that recognition
for the role of the judiciar y in in uencing and formulat ing foreign policy is
long overdue and must be forthcoming. Flaherty, in challenging the contention
that the judiciary should stay out of foreign affairs, arg ues strongly for it to
exercise a robust role in the conduct of foreign policy.8
It is thus important to take note of what has led to SCOTUS establishing,
gaining and remain ing in such a dominant role, which has now translated to a
prominent one in foreign affai rs. Foreign affai rs have played a crucial role in
the history of the USA and the role of SCOTUS in this regard must be viewed
in the light of historical, political, economic and social factors. To consider the
court st rictly as a legal i nstitution is to u nderestimate its real signica nce in
the US political system – both in domest ic and foreign affai rs.
The aim of this article is 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 increa sed
lately – quite often by way of const raints placed on the executive in handli ng
foreign affa irs. SCOTUS does not funct ion in a vacuum. This article sta rts
with a hist orical overview of SCOTUS and it s role in foreign affairs (part 2)
and then refers to the period where the court ha d little inuence i n this regard
(part 3). Part 4 reects on the circumst ances that gave rise to a cha nge in the
court’s position as a n important role player in foreign affa irs, which position
is elabor ated on i n part 5. Several decisions of SCOTUS are considere d as
landmarks in t he country’s constitutional his tory for their inue nce on the
well-being and affairs of the nation. Par t 6 discuss es the cour t’s reaction to
cases that deal with deta inees, the death penalty, aliens, the political question
and sole organ doctrines, and the issue of immig ration. Part 7 concludes the
discussion.
2 SCOTUS’s historical and emerging role in foreign affairs
Human rights and d emocratic principles are ingrained in and permeate the
US Constitution. Their promotion, fu rthermore, has always been an integral
part of the foreign policy of the USA. Their interpretation remains the dut y of
the court , even when applied in the context of foreign affairs, and have been
addressed by SCOTUS since its i nception.
To adequately exami ne and fully understand that r ole of SCOTUS, a host
of dif ferent aspects have to be taken into consideration, such as the events
before, during and after the Con stitutional Convention; the cr itical in uence
that foreign affairs had on t he Framers of the US Constitution; the record of
SCOTUS dea ling with foreign a ffairs issues dur ing its rst 150 years; and the
different doctrines the court adhered to in disp osing of cases w ith elements
of foreign af fairs. The Framers anticipated that int ernational disputes would
8 MS Flaherty Restoring the Glo bal Judiciar y: Why the Supreme C ourt Should Ru le in U.S. Foreign Affa irs
(2019)
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
333
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
regularly come before t he courts. Consequently, they deliberately d istributed
the powers relating to foreign affairs to all three branches of government.
While the Const itution does not explicitly assign any specic role in t he eld
of foreign affairs to SCOTUS, this does not imply that t he court has not in its
pronouncements over more than two ce ntur ies in uenced the foreign aff airs
of the USA. On the contr ary, its record testies to a voluminou s involvement
to the extent that it is no longer only the prerogative of the legislative and
exe cuti ve bran ches to i nue nce an d place th eir im prim atu rs on for eign af fair s.
For nearly a century a nd a half, SCOTUS did not recognise the President’s
role in foreign affairs as the dominant one. From 1790 to 1935 judicial rulings
established important pri nciples while the relative powers of Congress and the
President remained steady. SCOTUS did not favour the executive with powers
that were not const itutionally stipulated and just ied – either expressly or by
impl ication, a nd certa inly not in fo reign affa irs.9 The co urt alway s recogni sed
that limits on presidential power were incor porated into the constitutional
structu re. One of the actual attr ibutes of constitutional government conceived
by the Framers was that the application of the principle of separation of powers
was to make it difcult for the executive to get what it wante d.10
However, the context a nd consequences of the decision in United States v
Curtiss-Wright Export Corp11 (“Curtiss-Wright”) in 1936 requires scr utiny, as
does the ruli ng in Youngstown Sheet & Tube Co v Sawyer12 (“Yo ung sto wn”)
in 1952. Curtiss-Wright is one of the most importa nt, inuential and
controversial ca ses impacting on foreign affai rs. For more t han 80 years its
ruling dominated the executive outlook of foreign affairs with the cour t’s
pronouncement that the President is the sole organ of the nation in foreign
affairs.13 The infamous decision of Curtiss-Wright resulted in the judiciary
starti ng to treat the President’s power in foreign affairs as plenar y and
exclusive. For about 80 years t hereafter, the court continued to enforce this
judicial error by slavishly following the sole-organ doctr ine. Consequently,
presidential power in the eld of foreign a ffairs expanded almost unchecked
beyond constitutional bou ndaries.14 In that process, SCOTUS interpreted
presidential authority not in strictly constitutional and legal terms but often by
expressing personal sympathy and respect for the President.15 In Zivotofsk y v
Kerr y,16 SCOTUS eventually recognised the continual error of Curtiss-Wright
and the cour t unceremoniously jettisoned it. With this r uling, SCOTUS
9 L Fisher Supreme Court Exp ansion of Presiden tial Power: Unconstit utional Leaning s (2017) 47
10 PW Rodman Preside ntial Command: Po wer, Leadership, a nd the Making of Fore ign Policy from Ric hard
Nixon to George W. Bush (20 09) 272
11 299 US 304 (1936)
12 343 US 579 (1952)
13 In this case Su therland CJ ruled e rroneously that th e President had broad , undefined power s over foreign
affairs b y describing t he President a s “the sole org an” of the govern ment in foreign affairs For d ecades
the executive bas ed its actions in fore ign affairs on th is pronouncement
14 Fisher S upreme Court Exp ansion of Presiden tial Power 16
15 12
16 576 US 1059 (2015)
334 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
removed all remaining doubt t hat it has developed into a powerf ul and bold
constitutional adjudicator.17
Before that, though, the Youngs tow n case was also of immense signicance.
It did not overturn t he ruling in Curt iss-Wright, but it rejected that decision’s
vision of unrestrained executive discret ion and action. This in itself was a
devastating rebuke to President Truman’s overreach in the midst of the Korean
War. National securit y controversies gave the Young sto wn fra mework a whole
new lease on life and its relevance for the judiciary, Congress and executive
branch ofcials has never been g reater.18
This shows t hat SCOTUS has at times taken a strong position on its role
in cases with foreign affairs implications. From the beginn ing, SCOTUS was
determined that it was for the judiciary, a nd not the executive, to determine
what cases it could and could not adjudicate. This attitude of SCOTUS found
eloquent expression in the words of Lewis Powell J when he declared:
“I would be uncomfortable with a doctrine which would require the judiciary to receive the Executive’s
permission before invoking its jurisdiction. Such a notion, in the name of the doctrine of separation of
powers, seems to me to conict with that very doctrine.”19
Flaherty c oncludes that “nowhere would t he early Supreme Court exercise
this authority more dramat ically than in cases involving intern ational law and
foreign affairs”.20 From the beg inning, the separation of powers doct rine has
been the guiding light for SCOTUS. This concept is interwoven into the fabric
of its foreign affairs cases.
3 Lack of scholarly recognition for the role of SCOTUS
For most of the past 50 years Foreign Policy Analysis literature has dealt
overwhelmingly with state-centrism, which is the approach to decision-making
in foreign affairs that focuses on the two political branches of government.
That inherent weak ness exposed a vulnerabilit y in the holistic approach to
analysing foreign policy. A critical scholarly evaluation of the works that
make up the body of relevant literat ure made it clear that a new approach
had to be formulated given the incr ease in prominent r ulings by SCOTUS
impacting on foreign affairs. King and Meern ik, for example, concluded that
little study had been devoted to the court’s decisions on the foreign affairs
of the USA. T hey ascribe this lack of study to t he assumption most scholars
17 M Rosenfeld “Comparing c onstitutional review by the European Cou rt of Justice and the U S Supr eme
Court” (20 06) 4 IJCL 618 650
18 ET Swaine “The Political Economy of Youngstown” (2010) 83 So Cal LR 263 Pa ra llel s bet we en Pr esi den ts
Truman and Geor ge W Bush are striking Bot h faced conflict – Pre sident Truman duri ng the Korean War
and President Bush with t he aftermath of 9/11 and the intensif ication of the war on terror Both expec ted
the respec tive courts t o be swayed by the ir argument s about threa ts to the USA Bot h estimated that the
political climat e surrounding the ca ses was conducive to favourable outcomes Both invoked their powers
as Comm ander-in-Chief Both suf fered delusions of constit utional gr andeur Both were convin ced that
the r esults wou ld not be other than they ex pected In the end, both su ffered de cisively and both paid
heavily for their los ses – not only in judicial ter ms, but also, and perhap s more profoundly, in the cour t of
public opin ion The resp ective court s were not ki nd to them Both were ta ught lessons i n constitut ional
history t hat presidential powe rs in foreign affai rs have boundar ies and that the jud iciary will not tole rate
any trespa ssing
19 First Nationa l City Bank v Banco Nac ional de Cuba 406 US 759 773 (1972)
20 Flahert y Restoring the Global J udiciary 45
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
335
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
held that these cases were rare because of the political question doctrine, non-
justiciability, and the justices’ perception that such affairs were beyond their
competence.21 Randazz o also recognis ed the fact that despite it s substantial
impact on foreign affairs, lit tle scholarship exists on jud icial inuences i n the
conduct of foreign affairs.22 Still, l ittle, i f any, attention to t he judiciary was
forthcoming. This vacuu m became conclusively evident, but instead of lling
this gap, the overwhelmi ng attention remained focused on the t wo p olitical
branches as t he only role players of consequence when it came to foreign
affairs.23 Seminal works on foreign affairs continued to highlight recurring
themes, such as state-centrism, to the extent that it became a set pat tern and
served as a commonality between the studies. The intellectua l progression
in t hese works stoppe d short of coming to a logical conclusion and forging
a new path in thinking about and analysing the judicia ry’s role in foreign
affairs. Except for the commendable t reatises by Fletcher,24 Randazzo25 and
Flaherty26 in recent years, and their import ant critiques, the few studies that
do mention the judiciar y and foreign affairs have done so r ather supercially
and ina dequately to the p oint wher e it cannot be taken as supp orting such a
role for the judiciary.
The following observation by Whittington in respect of SCOTUS underlines
the importa nce of judicial supremacy i n the political context:
“Over time the federal judiciary seems to have gained more authority over constitutional
interpretation. As it has become evident that judicial supremacy is more often a help than a hindrance
to political leaders, judicial supremacy has become more prominent and secure. The general political
environment has also evolved in such a way that the logic of deference to judicial authority has
itself become more prevalent. The strategic calculations of the professional politician of the twentieth
century increasingly emphasized the value of recognizing judicial authority, even as the judiciary
built political resources of its own.”27
21 KL King & J Meerni k “The Supreme Court and the Powers of the Executi ve: The Adjudication of Foreign
Policy” (1999) 52 Political Resear ch Quarterly 801 801
22 KA R andazzo Judicial Deci sion Making in U.S . Foreign Policy Litig ation (2004) Paper prepare d for
presen tation at t he annual meeting of t he Souther n Politica l Science Ass ociation New Orleans Louisian a,
8-11 January 2004 See also DS Morey & KA Rand azzo Fluctuating Domestic Constraints: The Supreme
Court and Exe cutive Author ity in U.S. Foreig n Policy (200 9) Ann ual Me etin g of the I nter nati onal St udie s
Association New York, 15-18 Februa ry 2009
23 C Alden & A Aran Foreign Policy Analysis: Ne w Approaches (2 012); F By nand er & S Gu zzi ni Rethinking
Foreign Policy (2013); B Farnham “Impact of the Political Context on Foreign Policy Decision-Maki ng”
(2004) 25 Political Psyc hology 441; C Hill The Changing Po litics of Foreign Poli cy (2003); C Hill
“Renational izing or Regroup ing? EU Foreign Policy Sinc e 11 Se ptember 2001” (2004) 42 Jour nal of
Common Marke t Studies 143; J Kaar bo “Foreig n Policy Analysis in the Twenty-First Century: Back
to Comparison , For ward to Identity and Ideas” (2003) 5 Internat ional Studie s Rev 156; KE Smith
“Understa nding the Europe an Foreign Policy System” (2003) 12 Contemporary European History 239
24 KL Fletche r “The Cour t’s Decisive Hand Shapes the E xecutive’s Foreign Affa irs Policymak ing Power”
(2013) 73 Maryland LR 247; Fletcher Th e Collision of Political an d Legal Time.
25 Randazzo Judicial Decisio n Making in U.S. Foreign Policy Lit igation (2004); Rand azzo Defe nders of
Liberty or Ch ampions of Secur ity (2010)
26 Flahert y Restoring the Global Judiciary; MS Flaher ty “Judicial For eign Relations Au thority aft er 9/11”
(2011-2012) 56 NYL Scho ol LR 119
27 KE Whit tington Politi cal Foundations of Ju dicial Supremac y: The Presidency, the S upreme Court, and
Constitut ional Leadershi p in U.S. History (2007 ) 25
336 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
Fletcher is more direct and to the point in her assessment of the judicia ry’s
“direct h and in shaping the growth of the President’s un ilateral powers and
institutionali zed this prerogative in the area of foreign affairs”.28
4 What turned the tide?
In the USA there has been an increase of judicial power since World War
II.29 When Vallinder discusses the expansion of that power he has i n mind
the inf usion of judicial decision-maki ng into the political arena where it h as
not previously been recognised.30 Especially during the past few decades,
there has been a substantial growth i n the relia nce on the judiciary to deal
with fundamenta l questions of political signicance, including ones involving
foreign affairs.31 Malir consider s the judiciary’s im pact on foreign a ffairs as
the “judicialization of international relations”. His rm opinion is that the
judiciary plays an imp ortant role in contemporary i nternat ional relations – to
the exte nt that these relation s are act ually judicialised. With that extension,
the role played by the judiciary has obviously increased its potent ial to impact
on i nternat ional relations and the funct ioning of the international syst em.32
The judicialisation of politics has become a n established concept33 with a
global reach.34
What gave r ise to this change? Over the past 20 years, in particular, t here
was a major jurisprudential shift in SCOT US’s approach to analysing and
applying separation-of-powers questions.35 The court has become increasingly
involved in matters relat ing to foreign affairs and it is bound to become even
more involved in the f uture. Many of today’s most sensitive political issues
contain elements of foreign affairs and this has mea nt that the court ha s faced
foreign-affairs issue s never dealt with before as “at titudes on domestic issues
closely co rrelate to at titudes on foreig n issues”.36 This has b een brought ab out
by developments t hat changed the international environ ment – globalisation
in its many facets, the war on terror with its numerous cha llenges and the
28 Fletcher (2013) Maryland LR 28 4
29 L Barani “ The Role of the Eur opean Court of Justice as a Polit ical Actor in the Integration P rocess: The
Case of Sport Reg ulation aft er the B osman Ruli ng” (2005) JCER 42 55 He d efines “ju dicialization of
politics” as a ph enomenon aimed a t the expansion of the p rovince of the cou rts and judges at t he expense
of the politician s or the admini strators
30 T Vallinder “When the Courts Go Marching” i n CN Tate & T Vallinder (eds) Th e Global Expansion of
Judicial Power (1995) 13
31 R Hirschl “T he New Constitution and the Judic ialization of Pure Politics Worldwid e” (2006) 75 Fordham
LR 721 751 Ex amples are the detainee case s, the Alien Tort Statute cases , and the Zivotofsky ca ses See
part 6 for a disc ussion of these cases
32 J Malir “Judiciali zation of Internation al Relations: Do Internat ional Courts Matte r?” (2013) 3 The Lawy er
Quarterly 208 216-217
33 T Ginsbu rg “Administrat ive Law and Gover nance in Asia : Comparative Pe rspectives” i n T Ginsburg &
AYC Chen The Judicializa tion of Administr ative Governan ce: Causes, Conse quences and Limit s (2009) 3
34 J Ferejohn “Judicial izing Politics, Politic izing Law” (2002) 65 LCP 41 41
35 RJ Krot oszynski Jr “Cooperat ive Federalism, the New Form alism, and t he Separation of Powers
Revisited: Free Ente rprise Fund and the Pr oblem of Presidential Oversi ght of State-Govern ment Officers
Enforcing Feder al Law” (2012) 61 Duke LJ 1599 1606
36 Randazzo Judicial Decisi on Making in U.S. Foreig n Policy Litigation 21 The War Powers Res olution of
1973, also known as t he War Powers Act, is intend ed to check the presid ent’s power to commit the US t o
an armed con flict withou t the consent of Congre ss
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
337
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
renewed focus on human rights. T he issue of which branch of government
holds the war powers has tested the pri nciple of separation of powers to the
extreme at times. War powers these days encompass much more than what
they did 250 years ago. However, the system of checks and balances allows
for the t ension between the legislative and executive branches to be decided
by the third co- equal branch of government, the judiciary.
The court started to reject the notion that foreign affairs were different
from domestic affairs. The impact of domestic affairs on foreign affair s
was recogn ised and became more and more widespre ad. As foreign policies
are desig ned with the aim of ach ieving complex domestic and internat ional
agendas, they usually involve an elaborat e series of steps in which domestic
politics play an impor tant role. Foreign policies are in most cases designed
and nalised through coalitions of domestic and inter national role players
and groups. The domestic political environment, which includes all laws
enacted and legislative processes before being enacted, as well as government
agencies and the activities of lobby groups, to a large extent shapes the entire
framework of decision-making, also in an internationa l context. Further more,
domestic politics play an importa nt role whe n strategic foreign-policy
decisions are considered because of the threats anticipated or already executed
in connection with n ational security issues.
Henceforth, as b oth foreign and domestic affair s were treated on the s ame
basis, issues of foreign af fairs became suitable for jud icial review. The court
was now governed again by the principle of separation of powers but also of
constitutional and statutor y interpretation whether foreign or domestic issues
were at stake. SCOTUS refrained from applying the doctrines whereby the
court over a period of decades decline d to pronounce on executive actions
in foreign af fairs. In recent years , the court has demonstrated that it will not
avoid clashes wit h the executive when it is convinced that the P resident has
engaged in overreach in foreign affairs.37 Pri nciples like deference t o the
executive and doctrines like the one of political question are no longer merely
accepted and applied as was the case in so many instances by previous courts.
As Franck points out, the danger in the application of the aforesaid doctrines
arises when lawmakers and foreign-policy decision makers become t oo sure
of their own conduct.38 For too long, executive aggr andisement has prevailed
through c ustom, historical precede nt and congressional acqu iescence. A ll of
that conveyed a legitimacy t o the executive on which it thrived and exploited.
However, when the judicial will is present, many cases have demonstrated that
the cour t plays an ind ispensable role in foreign affairs, even when the other
two bra nches are compa ratively reticent. In the process, some justices have
refused to apply these doctri nes – althoug h not re pudiating them explicitly
– while others have strenuously favoured thei r application in cases involving
foreign affairs a nd, lately, national secu rity. To underestimate or ignore
37 The a nalysis by King and Mee rnik confirms as incorrect the not ion that SCOTUS has avoided cases
where foreig n affairs and policy ar e relevant and that there are relatively few cases i nvolving executive
power in foreign affai rs, and th at only on limited occ asions has SC OTUS interfe red with t he executive
branch’s preferences King & Meer nik (1999) Political Research Q uarterly 801- 824
38 TM Franck “Cou rts and Foreign Policy” (1991) 83 Foreign Policy 66 68
338 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
the power of the court to affect national security is to seriously misjudge
SCOTUS’s role. A foremost authority on US foreign affairs has remarked very
aptly that it is in regard to foreign affairs in particular that the separation of
powers bespea ks not suspicion and conict, but cooperat ion of the branches
for a un ied foreign policy under the Const itution.39 A nother observation
comes from Clarens: the system of separation of powers faces two compelling
and competing forces – international diplomacy on the one hand and domestic
jurisprude nce on the other.40
Constitutional rules have traditionally always been importa nt in the USA.
Its citizens de mand that governmental power b e exercised in a prescribed
manner. Much of the controversy sur rounding the Vietnam War concerned
not simply the merits of the conict but also the constitutionality of that bitter
involvement. Powerful as he may have become, any pr esident remains bound
by numerous constraints i n foreign affairs a nd in part icular as a consequence
of judicial pronounce ments.41 Yet, in the course of histor y several presidents
have exercised power during times of conict that have brought consequences
for each one of the m, which they never anticipated. P resident Franklin
Roosevelt placed Japanese-Amer icans in internme nt camps; President Harry
Truman seized steel mills; President George W Bush started detain ing citizens
from several countries indenitely in the Guantánamo Bay pr ison; President
Obama kept them there as he was incapable in eight years of closing the prison
as he had vowed to do on his second day i n ofce. This was in spite of the
striki ng remark in Bou mediene v Bush42 (“Boumediene”) in July 2008 calling
for an end to the misery of the det ainees: “the cost of delay can no longer be
borne by those in custo dy”.43
Presidential action in foreign affairs usually places the separation of powers
under struct ural strain, as the President’s role as Commander-in-Chief comes
to the fore, and power is accumulated by and centralised in the executive. This
reallocation of power can have deva stating consequences; the internment of
Japanese-American s during World War II is still a vivid re minder of th is.44
In the aft ermath of 9/11, the constit utional system was shaken to its core.
A series of controversies arose out of the aggressive response of the George
W Bush admin istration. The opinions of SCOTUS in the detaine e cases were
grist to the mills of those critics who were f urious and had strong feelings
about human rights infringements in the name of national security – the use of
torture in inter rogation, the treatment of detainees, especially at Guantána mo,
and domestic surveillance. Heavy criticism was also levelled against the
executive for action s initially taken i n secret and unauthor ised by Congress.45
39 L Henkin “For eign Affairs Power of th e Federal Courts: Sa bbatino” (1964) 64 Columbia LR 8 05 832
40 MS Clarens “Deference, Human Rights and the Federal Courts: The Role of the Executive in Alien Tort
Statute Litig ation” (2007) 17 Duke J Comp & Int’ l L 415 439
41 WT Reveley “President ial War-Making: Constitutio nal Prerogat ive of Usur pation?” (1969) 55 Virginia
LR 1243 1255, 1273
42 553 US 723 (2008)
43 795
44 TS Clark “Judicial De cision Making du ring Wartime” (200 6) 3 JELS 397 416
45 SM Griff in “A Bibliography of Executive Branch War Powers Opin ions Since 1950” (2013) 87 Tulane LR
649
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
339
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
During part s of its histor y, SCOTUS has bee n reluctant to exercise judicial
review when war was ragi ng and has deferred to the executive or deemed
cases non-jus ticiable p olitical questions.46 Nowhere do academic argu ments
and government practice deviate more sharply than on the question of judicial
review of war powers. Throughout US history, presidents and congresses have
struggled over the constitutional authority to in itiate military hostilities.47
For t he executive, specic powers are granted to formulate foreig n policy
and conduct foreign af fairs – so much so that presidents over t he years have
nearly become omnipotent when it comes to foreign af fairs. The President’s
position as Commander-in-Ch ief enables him to e ngage even more in foreign
affairs, sometimes with momentous consequences and disastrous results. If an
unforeseen att ack on the territory and people of the USA or other immed iate
dangerous th reat to US interests and securit y confronts the President, it is his
constitutional responsibilit y to respond to that threat with whatever means are
necessary, i ncluding the use of mil itary force abroad.48 SCOTUS conrmed
that such action fal ls under the umbrella of national securit y and is part of
“central Pre sidential dom ains”.49 Presidential war making, as an actuality or
feared potentiality, has been an is sue throughout US history. The controversy
surroundi ng that has been fuelled by the u npopularity of most of its wars,
by a deep-rooted fear since the framing of the Constitution that a president
may arrogate to himself all deci sion-making power, and by the nature of the
Constit ution itself. 50 Although the scope of pr esidential power to involve
the cou ntry in war is not a new issue, it has become a mat ter of increa sing
importance si nce 1945.
For most of President George W Bush’s eight years, Congress was ayed
for failing t o full its basic responsibilities in foreign affa irs. It was accused
of failing to properly mon itor the President’s foreign wars and anti-terrorist
initiatives and policies. Its oversight of foreign affairs and national security
policies vir tually collapsed.51 After 1945, pre sidents were cer tain that they
were mainly – or even solely – responsible for advancing foreign affairs and
defending the national security of the USA. Crucially, they viewed the u se
of force, including wa r, as one instrument among others in foreign affairs.
These presidents have lite rally claimed that they could take t he nation to war
based on their Article II constitutional authority and being the Commander-
in-Chief. They implicitly rejected the founding gener ation’s view that war
required a specia l measure of deliberation , involvement, a nd approval. For
them, t heir power in foreign affairs was closely related to thei r war-making
46 Franck (1991) Foreign Policy 68 He explains that in the USA it is a governm ent of laws in which exercises
of political powe r are legitimat ed by recourse to the judiciar y When recours e is denied, ever yone loses,
the politicia ns most of all
47 JC Yoo “Judicial Review and th e War on Terrorism” (2003) 72 George Washington LR 427 427
48 RJ Delahunty & JC Yoo “The Pre sident’s Con stitutional Author ity to Co nduct Military Oper ations
against Terrorist Org anizations and the Na tions that Harbor or Support T hem” (2002) 25 Harvard J of
Law & Public Policy 4 87 502
49 Harlow v Fitzgeral d 457 US 800 (1982) 812
50 Reveley (1969) Virginia LR 1247
51 WG Howell & JC Pevehou se “When Congress Stops Wars – Partis an Politics and Presi dential Power”
(2007) 86 Foreign Affairs 95 95
340 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
power. When the decision of Curtiss-Wright that anointed the President as the
“sole organ” in US foreig n affairs was added to the exec utive’s armour y in its
approach to the war-power clause in the Constitution, presidents became more
emboldened in their exercise of foreign policy. No wonder that the Framers’
intention to base governance on checks and balances became eroded over time
in the area of foreign affair s.
A profoundly new approach t o foreign affair s emerged from the ashes of
the Twin Towers on 9/11. Not only did new role players ente r the scene, but
they added impetus to the shift towards recognising the judiciary as havi ng
an importa nt inuence on the foreign af fairs make-up. The world was now in
a p rofound crisis, leaving international relations innitely more complex.52
The USA was shaken to its core. By t hat time, foreign affairs was alre ady
faced with the rea lity of globalisation in all of its manifestations, and its
consequences also caught up with the foreign policy establishment. T he latter
was unaware and ill-prepared to face all the fundamental changes brought
about by 9/11 alone as new realities dawne d on the world. Eckes reiterated
what has become the hallmark for the new generation of analysts: the inter nal
and the external have b ecome increasingly interlocked.53 For foreign-policy
decision-makers it was no longer pos sible to ignore domestic imper atives in
assessing inter national developments and formulating re sponses to them. As
national se curity star ted to featu re also more prominently in issues bearing
on foreign affairs, it has b ecome imperative to understand t his concept
comprehensively. The imp ortance of achievi ng this necessitat es an in-de pth
discussion of the concept of national secu rity and how it is now inextricably
part and par cel of domestic concerns and hence of foreign affairs as well.
Consequently, t he concepts of national interest, national securit y, dome stic
politics and foreign policy have become intert wined. With SCOTUS placing
the concept of national secur ity squarely and rmly in its decisions, the court
through its actions ha s become a role player in dening issues vit al to foreign
affairs. Stephen Breyer J duly re cognises that issues that were once almost
exclusively of local concern are now required to be address ed by the judiciary
as foreign affairs issues. 54
What has become clear is that the answers needed in the post-Cold War
era were no longer applicable in an unstable a nd unpredictable system in the
international arena.55 That predicament has i ntensied with the emergence of
terrorist groups like Al-Qa eda and ISIS. Seldom has a truer word been spoken
that so aptly applied to any current evaluation of foreign policy and resea rch
on it than Her mann’s observation, made in 1988, that it is not su rprising that
“many realist s have abandoned the h igh g round of the macro-level a nd have
52 M Ku chinsky “Nonstate Actors in Internation al Relatio ns” in JT Ishiyama & M Breuni ng (eds) 21st
Century Poli tical Science: A Refer ence Handbook (2001) 414
53 C Eckes “The Co urt of Justice’s Parti cipation in the Judic ial Discourse: The ory and Pract ice” in
M Cremona & A Th ies (eds) The European Cou rt of Justice and Ex ternal Relation s Law: Constitution al
challenges (2014) 183
54 S Breyer The Cour t and the World: American La w and the New Global Rea lities (2015) 170
55 VM Hudson & CS Vore “Foreign Policy A nalysis Yesterday, Today, and Tomorr ow” (1995) 39 Mershon
International Studies Review 2 09 211
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
341
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
come down to the trenches of real political ana lysis”.56 Changed internationa l
circumstanc es, coupled with domestic and foreign affairs that are now more
intimately intercon nected, have ensured the involvement of additional groups
in foreign affai rs so that they may play a role a nd exert an i nuence that
was not recogni sed previously.57 In accommo dating more role players and
acknowledging their resp ective roles in the foreign policy-making process,
focus is placed on these role players and their roles in inuencing that process
up to the point of formulation.58 Past is the era when only the two traditional
role players in foreign affai rs are rec ognised. In this respect, it has become
evident that the judiciar y is part of that process and should have its justiable
place in foreign affairs. Unlike public opin ion, which can be ma nipulated,
the contribution of the jud iciary always comes by way of pronouncements
that leave i ndelible imprints and enduring consequences. The judiciary is
founded on the Constit ution. This means that the judiciar y is in effect part of
governmental str uctures.
In recogn ising the growing judicial power of SCOTUS, Ura a nd Wohlfart h
argue th at the court is increasingly becoming a celebrated player in nat ional
policy making.59 Its in uence is not conned to dome stic affairs, but ver y
much includes foreign affairs as well, with its power to review legislative
and executive decisions. Flaherty advocates a robust role for the judiciary
in foreign affairs and explores how international relations today makes the
commitment t o balance the branches of government all the more critical. He
does not on ly strongly point to the implications for modern controversies
that the jud iciary will continue to confront, but makes the case for a zealous
judicial defence of fundamenta l rights involving global affairs.60
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 judicia ry. With t he judiciary possessing the authority to i nterpret the
Constitution, SCOTUS is empowered to dene the parameters and boundaries
within which the political branches can and must operate. This means that the
judiciary should be given its due weight in the foreig n policy-making proc ess
and recognised for its r ole in foreign affai rs. By the same token the executive
must accept the reality t hat its actions in foreign affairs are subject to judicial
supervision and that judicial decisions interact with foreign and national
security policies in p ractice.61
56 R Herman n “The Empi rical Challe nge of the Cog nitive Revolution: A Strategy for Drawing Inferences
about Percept ions” (1988) 32 International Stu dies Quarterly 17 5 212
57 Hill The Cha nging Politics of Foreig n Policy 250
58 M Hermann “How Decision Units Shape Foreign Policy: A Theoretical Framework” (2001) 3 International
Studies Review 47 47
59 JD Ura & PC Wohlfarth “‘An Appeal to t he People’: Public Opi nion and Cong ressional Supp ort for the
Supreme Cour t” (2010) 72 The Journal of Politic s 939
60 Flaherty Restor ing the Global Judiciary – this is a theme that r uns througho ut the book
61 E Chachko “ Foreign Affairs i n Court: Less ons from CJEU Target ed Sanctions Jur isprudence” (2018) 44
Yale J Int’l L 2 4
342 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
5 The importance and relevance of SCOTUS
SCOTUS no longer avoids displaying judicial power when it faces cases
dealing with foreign affai rs. The cou rt will not a ccommodate the executive
when its judicial mandate is to interpr et and apply t he Constitution,
however unpalatable that may be to the executive. What SCOTUS declared
unequivocally in t he Boumediene case is crucial in any democracy: if t he
political branche s were to be allowed to switch the Const itution on or off at
will, it would lead to a regime in which they, not the court, say ‘‘what the
law is”. 62 This pronouncement captures the role of the judiciary in a nutshell.
Further more, it is a role that w ill not diminish – not in domestic affai rs, and
most certain ly not in foreign affai rs.
One of the prima ry responsibilities of the judiciar y is to contain overreach
– be it in domestic or foreign affairs, be it by the legislature or the executive.63
With introspect ion duri ng the past two decades SCOTUS began inc reasingly
to reject the notion that foreign affair s are different from domestic affairs.
Instead, when it comes to judicial rev iew, the court star ted to tr eat foreign-
affairs issues as si milar to those arising from domestic affa irs.
The Constitut ion does not a ssign any s pecic role or function to SCOTUS
as far as foreign affairs are conce rned and the court is not involved in
formulating a ny foreign policy. No one has ever seriously suggested that the
judiciary be consulted on foreign policy. However, the Constitution does grant
the court judicial power, which impacts on foreign affairs. Most importantly, it
is granted the power to interp ret the functioning and actions of the legislature
and of the executive where they concern foreign affairs and ultimately to ensure
that nothing breache s the supreme law of the country. The refore, although
the judiciary may in general seem disinterested or unin formed a bout foreign
affairs, it is a powerful force in holding the other two branches of government,
especially the executive, accountable a nd keeping them accountable. Any
court possessing the power to overtu rn acts of either the President or Congress
is a formidable force.
Collins examines how much validity there still is in the principle that in
foreign affairs the executive and the cou rts should speak with one voice.64
From the case law it is clear that the judiciary does not hesitate to embarrass
the executive for its conduct in foreign affa irs if there is overreach in that
eld.65 What is import ant to keep in mind is th at the parameters t he judiciary
sets for the executive are constitutionally founded and sound, and apply
62 Boumedien e v Bush 553 US 765 (2008) SCO TUS base d its argument on the found ational source for
judicial revie w as institution alised by Marbur y v Madison 5 US (1 Cranch) 137 (1803)
63 During the confirm ation hea ring of (then) Gorsuch J to fill a vaca ncy on SCOTUS, Senator Charles
Schumer remarked that the judge ha d been unable to sufficiently convince him that he wou ld be an
“independ ent check on a president who has shown almost no restraint fr om executive overreach” S Dinan
& A Swoyer “Ch arles Schu mer says Democrat s will filibus ter SCOTUS nominee Neil Gorsuch” T he
Washington Times (23-03-2017)
64 L Collin s “Foreign Relations and the Jud iciary” (20 02) 51 ICLQ 485 485 At 487, Collins quo tes Lord
Atkin in Th e Aranzazu Mendi (1939) AC 256 264 who famously a rticulated t his principle:
“Our state can not speak with two voices on such a matt er, the judiciary sayin g one thing, the executive
another ”
65 486, 499-501
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
343
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
equally to foreign affairs. Thr oughout its ex istence, SCOTUS has used the
text of the Co nstitution, principles of inte rnational law, prudential doct rines,
and rationales and theories of implied statutory authority to set boundaries for
the political branches to conduct foreign affairs. However, over time, the effect
of the cour t’s ruli ngs has not always just b een to curb but somet imes also to
expand t he role of t he executive in foreign affairs, especially in the area of
national security beyond that which is implied or required by the Constitution
itself. The court has thus also become an unacknowledged co -participant in
foreign affai rs by endowing the executive with ex traconstitutional author ity
derived from international law, notions of sovereignty, and congressional
action or inaction.66
Because it is part of an integr ated constitutional system, its decisions must
be viewed in this broa der context. In some areas, the court can be regarded
as a lead policy in itiator. I n other areas, the court lls in the gaps of policy
created by the legislative and executive branches. In both instance s, the
court’s work is i nuenced by, and in tu rn inuences, the other two branches
of government, as well as the interests and opinions of the American people.67
Over the last several decades, t he court has become int erested again in
deciding f undamental questions, policing the federal system and overseei ng
the separation-of-powers system. From the rst de cade of the twenty-rst
century, t hat trend has continued. SCOTUS is now a key player in the legal
controversies about presidential power during war a nd peace by exercising
control over aspects of the Pre sident’s actions in t he eld of foreign affairs.68
In reviewing a book by a previous Just ice of the Court, Arthur Goldberg,
Revely declares that
“the work of the Supreme Court centers on constitutional interpretation, the facet of government
in which the judiciary as opposed to the legislature or the executive is preeminent and in which the
Court, unlike any other Amercian tribunal, has ultimate authority.”69
And this holds true not only in domestic matters, but also in foreign affairs.
In recent years, the court has demonstrated in no u ncertain terms that it is no
longer the court of the past – also when it comes to foreign affairs. During
the p ast fteen years, SCOTUS has systematical ly jettisoned its traditional
foreign affairs function in favour of formalism. A major jurisprudential sh ift
developed in SCOTUS’s approach to analysing and applying separation- of-
powers q uestions. Recently Kavanaugh J, by announci ng that he was open
to the idea of reviv ing the so-called non-delegation doct rine in a futur e case,
became the latest conservative justice to suggest support for bringing back
the separation-of-powers principle that Kagan J fea red would make “most
66 NE Powell “The Supreme Court as Inter preter of Executive Foreign Affair s Powers” (1987) 3 Connecticut
J Int’l L 161 203
67 RL Pacelle Th e Supreme Court in a S eparation of Power s System: The Nation’s Balanc e Wheel (2015)
68 KJ Harrige r “Judicial Supremacy or Judicia l Defense? The Supreme Court a nd the Separation of Powers”
(2011) 126 Political Science Quart erly 201 202
69 WT Reveley “ Book Review of Equal Justice: The Warren Era of the Su preme Court ” (1973) William &
Mary Law Sch ool Scholarship Rep ository 40 8 418
344 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
of government” u nconstitutional.70 Her remark came in res ponse to the
dissenting opinion by G orsuch J in Gundy v United States,71 with which John
Rob ert s CJ co ncur red an d in wh ich Ka vana ugh J di d not pa rti cipa te. Go rsuc h J
dealt at length with pertinent as pects of the principle of sep aration of power.
He indicated that he would not wait to revisit these matters in a fut ure case. In
his nal parag raph he threw down the gauntlet to his fellow justices:
“Now, when the statute faces the chopping block, the government asks us to ignore its earlier
arguments and reimagine (really, rewrite) the statute in a new and narrower way to avoid its long-
predicted fate. No wonder some of us are not inclined to play along.”72
In domest ic af fairs, the judiciar y is credited with being t he con stitutional
compass without which the executive can of cou rse stray. It forces the
executive to stay focused and act lawfully. The valid question that arises is:
why not in foreign affa irs? SCOTUS itself has in recent years answered that
question. It started to g ive due weight to foreign affairs, which tra nslated into
an inuence in the foreign p olicy-making process. The mess age conveyed
in recent decisions by SCOTUS is a powerfu l reminder that action s of the
executive branch designe d specically to enha nce national security and
conducting foreign affairs are not immu ne from judicial scrutiny. This is the
all-encompassing declaration SCOTUS has delivered to the executive in its
handling of foreign affairs: it is beyond quest ion that the judicia ry retai ns
the author ity to adjudicat e constitutional challenges to executive action and
foreign affairs are not excluded from t his adjudication.
It is impor tant that adequate attention is devoted to this development.73
The conc ept of policy-making is central to any understanding of SCOTUS.
It is, therefore, necessary to illum inate its judicial policy f unction.74 Ura and
Wohlfarth sp eak of the g rowing judicial power of SCOTUS. They ma intain
that the power the court thus exert s has already become a prominent and
institutionali sed component of govern ment seeking to control matters at
the heart of contemporary politics.75 These two authors regard SCOTUS
as increasingly becom ing a celebrated player in national policy-making by
inuencing an ar ray of important policy matters.76 It is thus clear that this
inuence is no longer co nned to domestic affairs. Fla herty underscores this
fact with equal vigour.77
The conde nce with which SCOTUS performs springs from its long-held
position th at it remains the ultim ate expositor of the constitutional text and
70 Law360 “Kavana ugh Interest ed In Revisiti ng Executive Power Doc trine” (25-11-2019) Law360
www law360 com/articles/1215247/kavanaugh-interested-in-revisiting-executive-power-doctrine>
(accessed 22-01-2021
71 588 US , 139 S Ct 2116 (2019)
72 33
73 D Foyle “Fore ign Policy A nalysis and Globalizat ion: P ublic Opinion, and the Individ ual” (2003) 5
International Studies Review 163 170
74 RS Wells & JB Grossman “The Concept of Judicial Policy-making: A Crit ique” (1966) 15 Journal of
Public Law 286 286 310
75 Ura & Wohlfart h (2010) The Journal of Politics 93 9
76 940
77 Flahert y (2011-2012) NYL School LR 13 4-138
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
345
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
that has inue nced an array of important cases involving foreign af fairs.78
In perform ing that task the court’s decisions dene t he parameters and
boundaries within which the political branches can a nd should operate – in
domestic affairs and most c ertainly also in foreign affairs.
Over time, most of the doct rines employed by the court to lim it its judicial
role in cases implicating foreign affairs79 have nally been discarded by
SCOTUS, thereby paving the way for the court to play a more active a nd
meaningfu l role in foreign affairs. Of par ticular import ance is t he inherent
signicance of SCOTUS discarding doctrines it has implemented for decades,
namely t he political question doctri ne and defere nce to t he executive. Th is
development in itself is one that is most instructive: a judiciary ending what
has been part of the court’s armou r for so many de cades is most certai nly
entitled to be taken seriously so that a gr eater debate can follow, and eventual
recognition can be acc orded to its role in foreign policy.
The debate over that role engages some of the most sensitive political issues
being fac ed by the USA in its foreign affairs. This being the ca se, Franck’s
remark is most instructive: no reasonable foreign-policy decision maker ought
to fear the judiciary.80 No cour t has a lice nce to ma ke foreig n policy. SC OTUS
has never tried to do so. Thus, when it delivers a ruling and it inuences
foreign af fairs, it does not ma ke foreign policy,81 it makes judicial policy.82
It is judicial policy t hat inuences foreign affairs and secures a role for the
judiciary in foreign affairs. Its basis is solid and unquest ionable – it is the
supreme law on which it is founded. The judiciary cannot evade responsibility
to mark the appropriate limits for those who engage in foreign af fairs. Any
advice on foreign affair s that the political branches may want to tender to the
judiciary should obviously be t aken into account – although not necessarily
followed. Jaffe makes the consequential observation about this advice, namely
that
“the court should not prostrate itself before the fancied needs of diplomacy and foreign policy [and
the] claims of diplomacy are not absolute; to question their compulsion is not treason”.83
78 Rehnquist CJ in Un ited States v Morrison 529 US 598 (20 00) 617 reiterates that many decisions of the
court have une quivocally reaff irmed the long-held p osition that it is “emphat ically the province an d duty
of the judicial de partment to say wh at the law is”
79 AC Ba ak “T he Ill egitimacy of P rotective Jurisdict ion over Foreign Affair s” (2003) 70 University of
Chicago LR 148 7 1510
80 T Franck Political Questi ons/Judicial Answers: Doe s the Rule of Law apply to Foreign Af fairs? (1992)
159
81 In 1994 SCO TUS, i n Barc lays Bank PLC v Franc hise Tax Board of Califor nia 512 US 298 (1994),
114 S C t 2268 2269, mad e this abunda ntly clear : “[it has] no constit utional a uthority to ma ke policy
judgements to regulate foreign commerce and conducting foreign affairs” (emphasis added) O n
12 October 2020 du ring her confi rmation hear ing (then) Barrett J c onfirmed th is point very fi rmly:
“Courts have a vital respon sibility to the rule of law, which is critical to a free society, but courts are not
designed to solve every pr oblem or right every wrong in our publ ic life The policy decisions and value
judgments of government must be made by the political br anches, elect ed by and accountable to the
people The public s hould not expect cour ts to do so and cour ts should not try ”
L Zhou “Amy Coney Barret t’s ope ning statement lays ou t he r position on the role of the court s”
(12-10-2020) Vox c om/2020/10/12/21513228/read-amy-coney-barrett-openi ng-
statement-s upreme-cour t-hearing> (acces sed 22-08-2021)
82 Franck Politi cal Questions/Ju dicial Answers 5
83 LL Jaffe J udicial Aspects of Foreig n Relations (1933) as quote d by Franck Political Questions/Judicial
Answers 157
346 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
The conventional wisdom – found in the academic literat ure as well as in
some cour t decisions – is that the executive branch possesses the expe rtise,
speed, exibility and political sav vy believed to be necessary for dealing
with foreign affa irs. Nobody denies the fac t that the judiciary lacks these
institutional competences. However, it is an exaggeration to asse rt that its
involvement in foreign affa irs tends to under mine the nation’s interests
abroad. While the executive has been keen to use this arg ument, the judiciary
has quite correctly not been impressed with this line of thoug ht repeatedly
being put forward by the executive.84
Un de rs ta ndi ng t he co nc ep t of th e ru le of la w an d cou r ts i n pol it ic s and p oli cy -
making is inherently complex.85 The judiciary plays a shifting and complicated
role in politics and policy-mak ing. I n reviewi ng judicial decision-maki ng
when the role of the judiciary in foreign af fairs is assessed, it is imperative to
establish not only to what extent the judicial branch inuences foreign affairs,
but also how much the executive has been reine d in as a result of judicial
pronouncements in ruli ngs. The political branch’s discretion in foreign affairs
is now the subject of judicial scr utiny and there is no more deference. Failure
to scrut inise executive actions wil l lead to a dr astic increase in the power of
the execut ive a nd that, i n turn, will be contrary to the nat ion’s interest and
the letter and spirit of what established the judiciary in t he rst place. It will
also increase the power of the executive in ways that would discourage it from
developing impor tant internal checks on it s power.86 SCOTUS is absolutely
committed to the overr iding principle of separation of powers. To allow the
executive to determ ine in any way which laws it will or will not obey, and to
dictate how they should be interpreted by the judiciary, would radically violate
that principle. That is unacceptable in a constitutional democracy.87 Coupled
with th is is another fundamental principle – judicial review – wh ich is also
ingrained in SCOTUS’s make-up. SCOTUS applies judicial review w ithout
fear or favour. It forms t he cornerstone of constitutional law. It grants and
ensures the unique syst em of judicial control over the political branches. This
principle ensures t hat the rule of law is, and remains, undeniably sacrosa nct.
The cour t, like the other two branches of government, is now involved i n
issues that directly change a nd shape the relationship of the USA with the
world.88 And as the ju stices decide these cases, they a re doing as much as
anyone to inuence the fortunes of the USA in an age of global terror and
84 It is impor tant to keep i n mind that the Constitut ion which SCOTUS i nterprets i s the same Con stitution
which the President in his inaugura l oath u ndertakes to preser ve, protect and defen d to the best of his
ability Viewed from another per spective: it is the court that inter prets for the executive what he has sworn
to defend
85 J Bar nes “Br inging the Cour ts Back In: Interbranch Perspect ives on the Role of Cou rts i n Americ an
Politics and Policy Ma king” (2007) 10 Annual Re view of Political Sci ence 25 25
86 D Jinks & N Kat yal “Disregardi ng Foreign Relations Law” (20 06-2007) 116 YLJ 1230 1282-1283
87 JJ Paust “The His tory, Nature, and Re ach of the Alien Tort Claim s Act” (2004) 16 FJIL 249 266
88 This concluding remark is made by J L Goldsmit h “Federa l Court s, Foreign Affair s, and Federalism”
(1997) 83 Virginia LR 1617 1715:
“As the line bet ween domestic and foreign relations blurs, the conti nued viability of these and relat ed
doctrin es as curre ntly understo od is uncer tain An im portant chal lenge for U S foreig n relations law
is to reth ink how its ju risdictional doctrines ap ply in a world in w hich ‘foreign relat ions’ is no longer
a distinct ive category ”
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
347
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
economic turmoil with the consequential impact on the countr y’s foreign
affairs. Breyer J is adamant that it is “implicit in the modern world, for local
judges to think about international considerations when they decide questions,
including questions of loc al law”.89 In 2019 he elaborat ed by referring to
international issues that have been heard by SCOTUS because they were tied
to the USA, a nd US laws or t reaties that applied to them. Conseque ntly, the
court is experiencing an incre asing number of cases i n which i nternat ional
law c omes into play because hundreds of bodies and organ isations around
the world have est ablished laws, rules and standa rds that could lead to court
challenges in the USA.90
The inuence of SCOTUS on government policy is important, but the
court’s impact on American society as a whole is even more signicant.91
Sufce it to draw attention to two particular epoch-ma king decisions and their
accompanying consequences. The rst ruling changed the USA forever. In
1954, with the rise of the civil rights movement, the case of Brow n v Board
of Education92 se rved as a guidi ng light for all f uture generations. With that
ruling SCOT US – not the President, or Congress – end ed 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
st and ing t oda y.93 And with the second ruling, the cour t again gained credit: it
reached the unanimous decision on 24 July 1974 ordering President Richard
Nixon to d eliver tape recordings. He obeyed the ruling.94 Then, when he
realised that he would be impeached, he resigned on 9 August 1974 rather than
barricade himself in his ofce.95 That decision helped to achieve his removal
from ofce within si xteen days, whereas the impeachment process would
have lasted for weeks, if not months.
Throughout, SCOTUS has not been timid in wielding its enormous inuence
by cut ting different presidents down to constitut ional size and by exposing
and blocking their overreach.96 These rulings revealed that the tr ue inuence
89 S Breyer “America’s Court s Can’t lgnore the World” (October 2018) The Atlantic
com/magazine/archive/2018/10/stephen-breyer-supreme-court-world/568360/ >(accessed 21-08-2021)
90 Associated Press “Justice Breyer: US Judg es Should Study H ow Other Count ries Handle Is sues”
(04-10 -2019) Associated Press
how-other-countries-handle-issues> (22-08-2021)
91 LA Baum The S upreme Court (2013) 213
92 347 US 483 (1954)
93 The National Marque tte Law Scho ol Poll (21-10 -201 9) sho ws th at US ci tiz en s tru st SC OTU S far more than
the two other branc hes of government and do not view it as an extre mely partisan ins titution Of the thre e
branches of govern ment, 57% find SC OTUS most trustwor thy, compar ed with 22% for Congress and
21% for the Preside nt Two other polls – Gallup and th e University of Pe nnsylvania’s Anne nberg Public
Policy Center – found solid public su pport for the co urt: see
supremecou rt2019> (accessed 22-0 8-2021)
94 United States v Ni xon 418 US 683 (1974)
95 E Posner “America Is Nowhere Near a Constitu tional Crisis” (31-12-2017) Tulsa World
com/opinion/columnists/eric-posner-america-is-nowhere-near-a-constitutional-crisis/article_b86e460f-
6504-5905-906c- 86dd5b31a262 html> (accesse d 22-08-2021)
96 During the Korean wa r, President Har ry Truma n miscalculate d and suffer ed a humilia ting defeat at the
hand of SCOTUS when the co urt turned t he tide against unbr idled presidentia l power with its decision in
Youngstown Shee t & Tube Co v Sawyer 343 US 579 (1952)
348 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
of SCOTUS is ofte n greater than t he sum of its decisions.97 T he rulings also
demonstrated the pe rils of an executive trying to act beyond its constitutional
limits. This r mly endorses Wasby’s observations th at no president can
expect to escape both judicial scrutiny and re primand. Justices a re prepared
– and inde ed willing and deter mined – to keep presidents within the bounds
of the Constitution.98 SCOTUS will not only demarcate t he boundar ies of
executive power in foreign affairs, but will also police them constantly. That
considerable authority of inuence it wields is no longer conned to domestic
affairs.
In reviewing judicial decision-mak ing when the role of the jud iciary in
foreign affa irs is assessed, it is i mperative to establi sh not only to what extent
the judicial branch inuences foreign affairs, but also how much the executive
has been reined in a s a result of judicial pronouncements in rulings.
While it is essential to illust rate why and how SCOTUS has inuenced
foreign affairs and why the judiciary’s rightful place in the process of foreign-
policy decision making has to be acknowledged, all the cases that have served
and underscored this statement admirably will not be enumerated here.99
Sufce it to mention two i nstances of g reat signicance. First, there are
the i mmortal words of Sandra D ay O’Connor J in the Hamdi v Rumsfeld100
(“Hamdi”) ruling when she fearlessly raised the const itutional red ag by
warning President George W Bush that he had “no blank check”101 to ght
terror when it comes to denying ind ividuals basic rights to which they are
constitutionally entitled.102 The r uling in Hamdan v Rumsfeld103 (“Hamdan”)
led to President Bush maki ng this impressive statement:
“I disagreed strongly with the Court’s decision, which I considered an example of judicial activism.
But I accepted the role of the Supreme Court in our constitutional democracy … Whether presidents
like them or not, the Court’s decisions are the law of the land.”104
Following the events of 9/11 with their mani fold consequences in side
and outside the USA, legal minds and p olitical scientists have reected on
this question: how does a country’s participation in a war change judicial
behaviour? Equally vexing is the accompanying question: is Cicero’s adage of
2 000 years ago still valid and justiable today? His legal principle of “silent
enim leges inter arma” – when the cannons roar, the laws fall silent – has been
used over the years to emphasise the point that when t he security of the state
is threatened, do not expect the laws of the land to apply.105 The mere mention
of foreign affai rs or national secu rity and the re percussions of these policies
no longer guaranteed that the President a nd his policies would be free f rom
97 P McCaffrey & LM Me ssina The United St ates Supreme Cou rt (2005) vii
98 S Wasby “The Preside ncy before the Cour ts” (1976-1977) 6 Capita l University LR 35 73
99 Cases especiall y noteworthy during the past two decades are thos e grouped together in particu lar clusters,
namely the d etainee case s; the death pe nalty cases; t he Alien Tort Sta tute cases; t he passport c ases; and
lately, the immig ration cases Th ese cases are disc ussed in part 6 of th is article
100 542 US 507 (2004)
101 “Check” is th e US English equivalent of “che que”
102 Hamdi v Rum sfeld 542 US 507 (2004) 536; Franck (1991) Foreign Policy 86
103 548 US 557 (2006)
104 G Bush Decision Points (2010) 178
105 Breyer The C ourt and the World 15
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
349
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
judicial scrutiny. The President could no longer nd sanctua ry in Cicero’s
maxim. The cour t refused to remai n silent. The mood of the judiciary has
shifted d ramatically. Thereby, SCOTUS reasserted itself – not least of all by
inuencing foreign affai rs.
6 Case law
The interdependence of the world today is reected in SCOTUS’s case load.
That in itsel f has created new and consid erable challenges for the judicia ry as
it increasi ngly becomes involved in foreign af fairs. More than 20% of cases
now being heard have an i nternational component. No branch of govern ment
can avoid dealing with global issues anymore. An u nderstanding of the world
ou tsid e – thu s “be yond th e wate r’s ed ge”106 – is cr iti cal fo r the cou rt in a ra pidl y
globalising world. Breyer J is emphatic that judicial awareness ca n no longer
stop at the US border – which he also refers to as the water’s edge.107 In that
process, SCOTUS has become more i nvolved in de ciding cases that address
important elements of foreign affai rs and pronouncing on greater supervision
of the executive. It is those pronouncements that have had signicance for the
foreign affairs of the USA.
The elements relating to foreign affa irs that are present in the following
cases are signicant and require attention a nd proper a nalysis as they have
domin ated the foreign- policy agenda of SCOT US in this centu ry. The foreign
affairs consequences of these cases must be qua ntied as well as what that
all means for the recognition of the judiciary’s role in foreign affairs. Wh ile
the judiciary does not formulate foreign p olicy, doe s not participate i n the
foreign-policy decision-making process, and does not engage in relations with
any foreign ent ity outside the judicial frater nity, these cases show that many
judicial actions direct ly and indir ectly affect foreign affairs.
6 1 The detainee cases
Rasul v Bush,108 Hamdi,109 Hamdan110 and Boumediene111 are all ca ses that
dened presidential overreach in important issues relating to funda mental
rights and foreign affairs. They were brought on by the war on terror after 9/11.
These four cases became hallmark decisions in dening the contours of the
President’s powers in vital aspects of US foreign and national secur ity policy.
Each case was also relevant for its human rights implications. The issue of the
prison at Guantánamo Bay featu red prominently in these cases. Ultimat ely
SCOTUS made it abundantly clear to the President that he did not have the
106 Origin ally thi s phrase meant that di sputes be tween Dem ocrats a nd Republica ns used to be limited to
domestic issues When there were policy quest ions involving foreign affai rs (thus issues that went beyond
the US borders, or be yond “the water’s edge”), they would t ypically defer to the Pr esident, put aside their
difference s, and support him in foreign affa irs See W Safire The New Lang uage of Politics: A Dict ionary
of Catchwords , Slogans and Politic al Usage (1972) 721-722
107 Breyer The C ourt and the World 236-237
108 542 US 466 (2004)
109 542 US 507 (2004)
110 548 US 557 (2006)
111 553 US 723 (2008)
350 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
authority to act as a law unto himself. He was reprim anded in stern te rms: a
state of war is not an open authority for t he President when it comes to the
rights of the nation’s citizen s. The signs of judicial m istrust in t he executive
began to emerge with these four cases. T he court changed traject ory when it
dealt with the Bush administration’s claim of war-making powers that entitled
the President to act in his constitutional capacity a s Commande r-in-Chief
to respond appropriately to t he war on terror. The deta inee cases followed
upon the execut ive claimi ng and applying uni lateral, unchecked authority to
capture and detain individuals indenitely as suspected terrorists and try them
as enemy combatants outside legally constituted instit utions. In these cases,
the court refu sed to apply crisis jurisprudence, which would have granted the
President special leeway to wage war. In doing so, the court each time deed a
president waging war. It hereby afrmed the cour t’s willingness to stand up to
a president in a time of crisis when required and not permit him to do whatever
he pleased du ring periods of conict. While the court has not in these cases
aggressively en forced separation of powers in the n ational security context,
it has i ndicated that it does take this pri nciple ser iously. With this approach,
these de cisions are, in a sense, stern lectures on political morality meant to
remind the executive that its detention policies are not immu ne from judicial
sc ru ti ny.112 These decisions forced the executive to revise its strategy in
dealing with the inmates at the Guantán amo Bay prison. A current SCOTUS
Justice, Stephen Breyer, who par ticipated in all four of these ha llmark
decisions, makes the i nstructive pronouncement in hi s autobiography that
the Gua ntánamo cases c oncern the “political branches’ authority to manage
int ernat ional af fairs dur ing an ac tive con ict”.113 Fur thermore, the executive’s
treatment of detainees i n the war on terror ca nnot escape judicial oversight.114
In Boumediene, SCOTUS added another dimension: the majority of the
court did not believe that the President’s policies were s trictly necessary for
the nation to prevail in war. In total, the President suffered substantial setbacks
– bot h with r egard to the particula r policy unde r review a nd in its broader
effort to expa nd presidential power.115 In this case, the court clearly diverged
from its precedent by refusing to defer to the executive in areas of foreign
affairs dur ing a time of conict. The clearest break with precedent came with
this case. Until 9/11, the court had consistently taken t he position that any
constitutional questions arising from the military detention or prosecution of
enemy combata nts were political questions to be answered and disposed by
the polit ical branches alone.116 St arting with Hamdan, where deference was
112 RH Fallon Jr “The Supre me Court, Habeas Cor pus, and the War on Terror: An Essay on Law and Political
Science” (2010) 110 Columbia LR 352 392
113 Breyer The Co urt and the World 78
114 J Mart inez “Availability of U S Cou rts to Review De cision to Hold U S Citize ns as Enemy Combat ants
– Executive Power in War on Terror ” (2004) 98 AJIL 782 787
115 D Johns en “The Stor y of Hamdan v. Rumsfe ld: Trying Enemy Combatants by Military Commission” in
CH Schroede r & CA Bradley (eds) Presidential Power Stories (2009) 447 448
116 HP Sc ribner “A Fu ndamental Misconception of Separa tion of Powers: Boumediene v. Bu sh” (2009) 14
Texas Review of La w and Politics 90 145
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
351
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
conspicuous by its near total ab sence, SCOTUS has started to treat deference
to the executive as “a feeble doctrine”, as Flaher ty describes it.117
Together, these cases represent a clear reassertion of the judiciary’s proper
role in foreign affairs. What makes Boumediene and Hamdan of special
signicance in the realm of foreign affairs is how t he cour t assess ed the
Constitution as faci ng outward, expanding, and promoting the r ule of law.
Cleveland focuses on these aspects:
“Those two decisions [Hamdan and Boumediene] have been extraordinarily important in helping the
U.S. Government to bring its detention policies within a rule of law framework that is internationally
recognized and accepted.”118
The mere mention of foreign affa irs or nationa l secur ity a nd 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
nd sa nctuar y in Cicero’s max im. Agai n, the cour t refuse d to remain si lent.119
Thereby, SCOTUS reasserted itself by inuencing foreign affairs. Breyer J
has this apposite concluding re mark:
“Some people thought that we had interfered too much with the exercise of judgment by the president
and Congress. In reply, I might quote Lord Atkin, a British judge, who wrote in the middle of World
War II, ‘Amid the clash of arms, the laws are not silent. They may be changed, but they speak the
same language in war as in peace.’”120
In the case of Hamd i, the court provided guidance on the judiciary’s role
in the war on terror. T his case attempted to ex plain how the court would
use judicial review during the war on terror and provided strong statements
supporting t he exercise of judicial review over the wa r powers.121 The
court’s decision in Hamdan represented a radical new judicial approach to
the interpretation of laws relating to foreign affairs, the war on terror and
conditions of conict.
Because of the conict that existed bet ween the democratic and
constitutional values on which the country was fou nded and recognised and
protected by SCOT US, and t he cynical pursuit of power p olitics in the name
of national security t o protect the homeland regardless of the conseque nces
as determined unilaterally by the P resident, these cases caused tensions in
US foreign affair s. Ultimately the court ruled that the P resident did not have
the authority to act as a law unto himself. With these four cases , the signs of
mistrust i n the executive began to emerge.
6 2 The death penalty cases
The three case s concerning the death penalty dea lt with fu ndamental
human rights issues, but ultimately did not protect the rights of the individuals
117 Flaher ty (2011-2012) NYL School L R 131
118 S Cleveland “War, Terror, an d Federal Courts , Ten Years af ter 9/11” (2012) 61 Am U LR 1253 1256
119 AH Ga rrison “T he Judiciar y in Times of National Se curity and Terrorism: U bi Inter Arma Enim Silent
Leges, Quis Cu stodiet Ipsos Cus todes?” (2006) 30 Am J Trial Ad voc 165 230
120 S Breyer “America’s Court s Can’t Ignore the World” The Atlan tic.
121 NG Gree n “Blank Che ck Judicial Rev iew and the War Power s in Hamdi v. Rumsfeld ” (2005) 56 So Carol
LR 581 581, 582
352 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
concerned, and th is damaged the stand ing of t he USA inter nationally. The
rst and the most important one of the three death penalty cases is Medellín
v Te xa s122 (“Medellín”). This case concer ned the President’s domestic affairs
power, although dealing with an intricate issue of foreign affair s. The court
held that the C onstitution was a domestic bluepr int designed to preser ve and
protect the USA from foreign encroachment. The court fu rther held that
international treat ies and decisions of the ICJ are not binding domestic law per
se and that the President lacks the power to enforce inter national treaties or
decisions of the ICJ as such a law-making power is not allocated to him by the
Constitution. The Medellín decision came just at the moment when the USA
was trying to reasser t its commitment to the rule of law internationally. Those
who welcomed the decision did not care; for them, upholding an international
judgment that differed from their judicial system was inconsiste nt with the
core constit utional values of the USA. The message sent to the world and to
those at home was precisely the wrong one at this historical junctu re when the
USA needed – at least at that time – to convince the world that it still believed
in internat ional legality.123 Medellín was a high-prole foreign-affairs powers
case and its outcome was a d efeat for presidential power in the context of
the enforceme nt of international law a nd therefore indirectly of its power in
foreign affairs.124 In his autobiography, Breyer J very succinctly summarised
this dilemma for the USA:
“Americans will have to ask themselves, at least respecting such technicalities often important to
everyday life, where they stand with regard to our keeping promises generally, and our abiding by
decisions of an international tribunal that we have promised to follow in particular.”125
There was quite a strong reaction to the decision. What suffered most i n
the end was the reput ation of the President in foreign affairs. Once ag ain,
he was rebuked in no uncertain terms. The cou rt could not have been more
straightforward: t he President’s assessment of what inuenced foreign affa irs
was not convincing at all. The th ree death penalty cases came at some cost to
the USA’s inter national standing a nd brought the USA i nto conict with the
ICJ. The rebuke that the President suffered in each of these cases undercut
the USA’s standing in foreign affairs. These de ath penalty cases have one
dimension in common with those constituting t he detainee cluster: they all
rebuked the President in one way or the other. I n each of them, the issue on
which the President was rebuked had foreign affa irs as its origin. But equally
important is the fac t that each of these decisions had implication s for the
foreign affairs of the USA.
122 552 US 491 (2008) The other two cases were Bre ard v Greene 523 US 371 (1998) and Leal Garcia v Texas
564 US 940 (2011)
123 In 2008, the USA was still struggling to improve its international credibility after its invasion of Iraq in
March 2003, which la ter caused much conde mnation at home and ab road
124 DJ Bederma n “Medellín’s New Paradigm for Tre aty Interpre tation” (2008) 102 AJIL 529 538, 539
125 Breyer The Co urt and the World 218
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
353
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
6 3 The Alien Tort Statute cases
Sosa v Alvarez-Machain126 (“Sosa”), Ki obel v Royal Dutch Petroleum
Co127 (“Kiobel”), Jesner v Arab Bank , PLC128 (“Jesner”) and Nestlé USA , Inc
v Doe129 closed legal avenues for foreigners if they have no nexus with the
USA (ie when either the plai ntiff, the defend ant or both are foreig ners and the
place where the wrongful act was committed is outside the USA). The original
purpose of the Alien Tort St atute of 1789 (“ATS”) was primarily to remedy
harms suffered by aliens at the hands of US citizens.130 The ATS was thus
enacted to deploy federal judicial power to ensure that the USA does not harm
other people – not to ens ure that others do no har m all over the world and be
compensated by a US court .131
For two ensuing cent uries the statute remaine d dormant. Then it became a
vehicle to a dvance human right s. Sosa was the rst to e nter the court’s roll.
While it was led in the period before 9/11, it was only decided several years
after new imper atives had changed the foreign-policy landscape. SCOT US
was not in favour of expand ing the scope of the ATS beyond its original
meaning. With t he important a nd celebrated Kiobel case, the cour t placed a
rm lim itation on the application of the ATS. The Jesne r case brought clarity
that foreigners could not su e foreign corporat ions under the ATS, a bsent
congressional authoris ation. The Nestlé case has now precluded futu re cases
of hu man rights abuses against cor porations when allegations can only be
made that general corporate decision-making occu rred in the US. In futu re,
plaintiffs will have to establish a strong domestic nexus with the US for a claim
under t he ATS to be successful. US cor porations will have valid arguments
that they cannot be held liable in cases b rought under the ATS simply for
participati ng in a global supply chain in which foreign third pa rties may have
violated internat ional law.
SCOTUS decided these four case s in a globally re-adjust ed strategic
environment and during a period i n which the different US adm inistrations
reviewed their human rights sent iments and national security priorities. The
periods between Sosa (2004) and Kiobel (2013), and post Kiobel and Nestlé
(2021) must be evaluated in the context of the internat ional settings prevaili ng
during e ach of these periods a s well as the domestic a ffairs of the times that
inuence approaches to foreign af fairs. I n 2004, the position of the USA
domestically and internat ionally was vastly different from what it had been in
1980.132 Paradigm shif ts took place in every conc eivable aspe ct of domestic
126 542 US 692 (2004)
127 569 US 108 (2013)
128 584 US , 138 S Ct 1386 (2018)
129 593 US , 141 S Ct 1931 (2021)
130 The Alien Tort S tatute was orig inally intro duced in s 9 of the Judi ciary Act of 1789 It was later codi fied
in 1948 as 28 USC § 1350 and stipula tes:
“Distric t courts shall have original ju risdiction of any civil action by an alien for a tort only, commit ted
in violation of the l aw of nations or a treat y of the United States ”
131 TH Lee “T he Safe-Conduct T heory of the Alien Tort St atute” (2006) 106 Columbia LR 830 840
132 S Walt “The Deat h of Global Order Was Caused by Clinton , Bush, and Obama” (12-10-2018) Foreign
Policy
and-obama /> (22-08-2021)
354 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
and i nternational life. By then, 9/11 had already ta ken its toll in more than
one way on the outlook of the USA on the world and on its ow n position
international ly. By then, the USA no longer appear ed to have the luxury or
the appetite for championing international human rights claims. Nor, for that
matter, did it seem prudent to allocate US taxpayer-funded judicial resources
to the handling of so-c alled “foreign-cubed suits”133 with no discernible
benet to US interests, and, indeed, which had a high potential for damaging
these interests by meddling in the internal politics of other count ries. The
fact that SCOTUS delivered an unanimous decision in the Kiobel case gave
recognition and credence to the fact that the internationa l setting had changed
dramatically since Se ptember 2001.
After these four ATS cases the st atute has lost its attractiveness for foreign
plaintiffs want ing to engage the US jud iciary in their efforts to settle human
rights scores committe d in faraway places with no element in the proceedings
having any nexus with the USA. These cases acknowledged the impor tance
of not causing diplomatic stri fe. The all-impor tant caveat prevailed: “distinct
American interests” must be involved.134 From these cases emerged crucial
requirements that must be met for these lawsuits to be successful. Henceforth,
plaintiffs in ATS cases have to demon strate t heir nexus with the USA in
order to pursue their grievances a nd that their case s are not “foreign c ubed”
ones. Cases w ith foreign fa ctors (plaintiffs, defendant s and locus) were
now classied as “ foreign-cubed” cases, not merely ex traterritorial ones.135
Another requirement they will have to meet is “touch and concern”.136 This
means that t he case must touch and concer n US territory.137 In addition, they
will have to overcome the presumption against extrater ritoriality. In enforcing
that principle, SCOTUS refu sed to interpret the ATS as having any u niversal
application. Those foreign litigants will be well advised also to heed the
unanimous r uling of the Marshall Court in 1807 which held that “[t]he courts
of the United States have no jurisdict ion over cases between al iens.”138
6 4 The Zivotofsky cases
In both Zivotofsky v Clinton139 (“Zivotofsky I ”) and Zivotofsky v Kerry14 0
(“Zivotofsky II”) the court was faced with part icularly thorny foreign-policy
issues with each having its own signicance. In Zivotofsk y I, the court did
not decide a claim; SCOTUS rather placed the political question doctrine i n
133 This is the description for suits by foreigners against other foreigners based on acts in a foreign country
that came into usage afte r Kiobel v Royal Dutch Petro leum Co 569 US 108 (2013) See TH Lee “The Three
Lives of the A lien Tort Statut e: The Evolving Role of the Judiciary in U S Foreign Rela tions” (2014) 89
Notre Dame L Rev 1645 1647
134 Kiobel v Royal D utch Petroleum Co 569 US 108 (2013) 133, 139
135 D Nersessian I nternational Hu man Rights Litigati on: A Guide for Judges (2016) 25, 29
136 J Belli nger & A Wang “Jesner v A rab Bank: The Suprem e Court Should Not Mi ss the Op portunit y to
Clarify the ‘Touch and Concern’ Test” (10-10-2017) Lawfare
arab-bank-supreme-court-should-not-miss-opp ortunity-clarify-touch-and-concern-t est> (22-08-2021)
137 Breyer The Cou rt and the World 159
138 Montalet v Murray 8 US (4 Cranch) 46 (1807) 47
139 566 US 189 (2012)
140 576 US 1059 (2015)
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
355
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
proper perspe ctive and held that it was no longer of any consequence. Whi le
the de cision in Zivotofsky II that the President’s aut hority of re cognition of
states was left intact and endorsed, was greeted with delight, that success
overshadowed the long-awaited message that the court conveyed. In this
case SCOT US eventually recognised the perpetu al error of Curtiss-Wright.
After 82 years, SCOTUS declared s pecic dicta from Curtiss-Wright to be
of no consequenc e and rejected them. The court unce remoniously jettisoned
the label of “sole orga n” in foreig n affairs that was assigned to the executive
in unq ualied previous r ulings, such a s Curtiss-Wright.141 The decision was
clear in declining “to ac knowledge that unbounde d power”.142 To d rive that
particular understandi ng home, the judgement held t hat Curtiss-Wright did
not “extend so far” as t he Brief suggested.143 The court could not have been
more forthright:
The Executive is not free from the ordinary controls and checks of Congress merely because foreign
affairs are at issue.”144
And the court cou ld not have been more decisive with this pronou ncement:
It is not for the President alone to determine the whole content of the Nation’s foreign policy.”145
Herewith SCOTUS removed all remaining doubt that it has developed into
a powerf ul and bold constitutional adjudicator.146 With these two cases, t he
court brought f urther scrutiny to foreign affairs in the process it started a
decade earlier with the r st of the detainee cases.147 In doing so, the cou rt
unquestionably rejected the execut ive’s arguments that foreign affairs cases
require and deserve exceptional treatment and are not t for judicial overview.
Consequently, these two cases became impor tant markers for SCOTUS’s role
in foreign affairs.
6 5 Immigration and related cases
Immigrat ion into the USA has taken on a new meaning after 9/11, and even
more so after Pre sident Trump beca me president in January 2017. During t he
Trump e ra it became more than ever before interli nked with foreig n affairs
and later al so with national security. A cluster of ca ses allowed President
Trump to pursue his policies on who could enter the USA. These cases all have
denitive implications of a foreign af fairs nature, as a st udy of the cases that
SCOTUS dealt with during the rst three years of the Tru mp administration
in respect of visas a nd immigrat ion (also refer red to as the travel ba ns),148
141 The ruling strongly s uggested this lang uage did not ne cessarily character ise the relationship between
Congress and the President with reg ard to the conduc t of foreig n affair s CA Br adley & CM Vázquez
“Introduc tion to Agora: Refle ctions on Zivotofsky v. Kerry” (2015) 109 AJIL Unbound 1
142 Zivotofsky v Kerry 576 US 1059 (2015) 2089 (emphasis added)
143 208 9
144 2089 (emphasis a dded)
145 2090
146 Rosenfeld (20 06) IJCL 650
147 HG Cohen “Formalism and Distr ust: Foreign Affairs Law in the Roberts Court” (2015) 83 George
Washington LR 380 435
148 Trump v Inter national Refug ee Assistance Pr oject 582 US , 138 S Ct 542 (2017); Trump v Hawaii 585
US , 138 S Ct 2392 (2018)
356 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
asylum,149 and the border wall with Mexico
150 reveals.151 Consequently, it is
imperative to take due notice of these cases that challenged the President’s
handling of issues and which had distinct aspec ts of foreign affairs embedded
in all of them.
President Trump b elieved that he ha d the legal arguments and cour t
precedents to support his st andpoint a nd actions. Further more, as Litman
argues, President Trump was “well aware that the Supreme Court majority
that he helped put in place [was] bullish on executive power”.152 During the
rst three years of the Trump pr esidency, the Depa rtment of Justice tried
to leapfrog the trad itional process far more than its predecessor s did.153
Vladeck obse rves that in less than th ree years the Solicitor General led an
unprecedented number of requests for emergency or extraordinar y relief from
SCOTUS.154
The series of travel bans P resident Trump ordered ha d important foreign-
policy and national secu rity implications. They also did not escape the
attention of SCOTUS. The judiciary has long recognised that the executive
has the power to exclude aliens f rom the USA. The c ourt has repeatedly
described the ability to refu se t he a dmission of al iens as a cor e fede ral
prerogative, which is inherent i n the concept of sovereignty and necessary
for defending the nation again st foreign encroachments and d angers. That
was the mai nstay of the executive’s ar guments i n the cases that Pre sident
Trump appealed and the court declared moot and vacated. There are many
prior incidents of administrations that barred ent ry of aliens into the USA
based on their nationality. Previous presidents used exactly the same statutory
authority t hat was claimed by President Trump t o refuse admission to aliens
from several countries in attempts to prevent dangerous individuals from
entering the USA from cou ntries identied as secur ity threats.155 When
SCOTUS delivered its rul ings on Pre sident Trump’s travel bans, it ruled in
149 Barr v Eas t Bay Sanctuar y Covenant 588 US (2019)
150 Trump v Sierra C lub 588 US (2019) saw SCO TUS per mitti ng the exec utive to be gin cons truct ion on
a border wall wit h Mexico using fund s that were appropri ated by Congress for othe r purposes It bec ame
apparent that a major ity of justices tacitl y accepted the executive’s claim tha t the situation at the southe rn
border of the USA need ed unforeseen mi litary requi rements
151 Suffice it to recor d references to other relev ant cases: Wolf v Inn ovation Law Lab (Applica tion for Stay
Document 19A960 March 2020); Dep artment of Homeland Secu rity v New York 589 US (2020);
Departme nt of Homeland Secu rity v Regents of the Un iversity of Califor nia 591 US (2020)
152 H Litm an “Don’t a ssume the Supreme Court w ill give Trump a resoundin g victory ” (16-12-2019) The
Washington Post
will-give-trump-resounding-victory/> (22-08-2021)
153 S Baker “Trump’s selective u rgency at th e Supreme Cou rt” Axios 23- 01-2020
trump-supreme-court-speed-aca-0 c8c2839-6559-4092-a29c-2f111474ca4bhtml> (accessed 22-08-
2021) Legal challenges t o federal law ty pically go throu gh three stage s: a district cou rt, then an a ppeals
court, an d finally an app eal to SCOTUS
154 SI Vladeck “T he Solicitor Genera l and the Shadow Docket – A n Essay” (2019) 133 HLR 123 124, 125
155 President Carter revoke d visas to all Irania n nationals in 1979 – one of the countr ies listed i n President
Trump’s t ravel b an I n 1986 President Reagan suspe nded t he im migration of all C uban n ationals to
the USA In susp ending the entry of members of the Sudanese g overnment a nd armed forces i n 1996,
President Clint on explained that it was in the foreign policy inte rest of the USA to do so Presid ent Obama
suspended t he entry of Russian n ationals in 2014
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
357
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
essence that the Pre sident’s actions were both legal and constitutional.156 In
its ruli ngs SCOTUS recognised that the President has broad powers to block
foreigners from enter ing the USA. The signicance of this is that in these
cases SCOTUS, for the rst time, considered t he merits of a policy that has
consumed the adm inistration since early times and recogn ised the judiciary’s
role in n ational security is sues that are u sually left to t he political branches.
SCOTUS admitted what the President ha d underli ned all along: the crux
of his immigration actions h as been national secur ity. W hile Congress has
plenary power under the Constitution to establish immigration policy, the
President is given an explicit power when it comes to i mmigration. This fact
has e mphatically been acknowledged by Rober ts CJ in SCOTUS’s de cision
of 26 June 2018 in that fede ral legislation “vests the Pre sident with authority
to restrict the entry of aliens whenever he nds t hat their entry ‘would be
detrimental to the inte rests of the United States’”.157 This decision gives
credence to t he statement that in the case of the USA, SCOTUS has now
concretised its role in foreign affai rs.
Although Pr esident Tru mp’s asylum ban did not fall into the same
category as his t ravel bans, the for mer shared similarities with the latter in
that it also t ouched on some of the sa me foreign-policy and national secur ity
considerations. Therefore, during the past four years SCOTUS has had several
opportun ities to place its stamp on issues directly affec ting foreign affairs
when it hea rd these various a nd diverse cases that , in essence, all dealt with
immig ration. On 19 October 2020, SCOTUS a nnounced that it would ta ke up
two cases arising from the Trump admini stration’s effort to stem immigration
through the borde r with Mexico. The review has been granted to weigh in on
the long-run ning dispute over the funding for the Pr esident’s border wall, as
well as the legalit y of the administrat ion’s “remain in Mexico” policy, which
allowed immigrants seeking asylu m in the USA to be returned to Mexico
while they wait for an asylum heari ng in an immigration court i n the USA.
7 Conclusion
With the identication of prev iously unknown challenges broug ht about
by the twenty-rst century, attention has to be paid to globalisation and
the war on terror f rom a judicial perspect ive. In the past two decades, the
judiciary has appropr iately become more of an inuence i n the foreign policy
decision-making process of the USA. Restraint, pessimism and concern about
overreach by the executive when it comes to foreig n affairs are not iceable
trends e mbedded in several recent r ulings. SCOTUS has b egun to deal w ith
this new re ality in a decisive man ner. It is no longer afraid to speak its mind
and to ght against the other branches of components in government. Cohen
156 In order to appreciate the cour t’s respective rulings on the travel bans, it is import ant to take cognisance
of previous court rul ings on immigration, whic h, in addition to the cases decided in 2018 already, could be
again dire ctional in futu re See Knauff v Sha ughnessy 338 US 537 (1950); Harisiades v Shaughnessy 342
US 580 (1952); Fiallo v Bell 430 US 787 (1977); Haig v Agee 453 US 280 (1981); Kerry v Din 576 US ,
135 S Ct 2128 (2015)
157 Trump v Interna tional Refugee Ass istance Project 582 US , 138 S Ct 542 (2017) 1
358 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
warns that this reality “with all its implications must be u nderstood and
watch ed ”.158
In the recent past, SCOTUS ha s opined a great deal about foreign af fairs.
In doing so, the cou rt has put down even r mer markers about its role in
foreign affai rs. For a long time, the cou rt adhered to principles, s uch as the
political question doctrine, that kept conicts with foreign affairs implications
from being scruti nised by the judiciary. That allowed the executive expansive
authority as the President received considerable defere nce and could rely
on judicial leniency. SCOTUS’s decisions made t his comfor table position
possible. However, once Curtiss-Wright was overtu rned in Zivotofsky II, this
authority is no longer available to the executive and it is no longer possible to
take the judiciary for g ranted in foreign affairs.
SCOTUS has been stead fast in its approach that the role of the judiciary
in times of crisis is to ensure that the boundaries of executive p ower are not
crossed, even where such overrea ch may be popula r or even expedient. The
ruling in Yo un gst own remains sig nicant: the executive is not supre me – not
even in times of crisis. It is the rule of law – the Constitution and principles of
justice – that remains and is held supreme. It is incumbent on the judiciary to
ensure that the rule of law is respected, obeyed, enforced and defended, even
in times of conict. In the nal analysis, it is the executive that propo ses but
the judiciary that d isposes. This is so in both foreign and domestic affai rs.
During the past 20 years, presidential authority specically has come under
ever-increasing scrutiny. In this process, SCOTUS has broug ht a deeper
understandi ng of presidential powers. Some presidential action post 9/11
infringed or t hreatened to infringe on individua ls’ basic rights. Those actions
were challenged by the judiciary. That was done not because the C onstitution
prohibits the executive f rom doing so, but rather bec ause the President
acted alone or lacked sufcient authority to act as he did.159 With these
pronouncements, especially in the detainee case s, the court demonstr ated that
Cicero’s adage no longer ha s any currency. Now the law is a nything but silent
when cannons roar. What is signicant in analysing the cases where SCOTUS
demonstrated its power in sta nding up to the executive is that they al l deal in
one way or the other with an aspect of human rights. They also represent a
clear reasser tion of the judiciary’s proper role in foreign affairs.160 Fl ahe rty ’s
re fere nce to Jo hn Ja y,161 who suggested that the Framers generally believed that
the judiciar y should be a full player in the separation of p owers f ramework,
including foreign r elations, is quite tting here.162 I n the same vein, Flaher ty
paraphrases the remark by Ja ckson J in Yo ung sto wn:163 when the court is
“concerned with separat ion of powers it should be the last, not the rst, to
158 (2015) George Washington LR 380
159 CH Schroeder & CA Bradle y “Int roduction – Th e Stor y of Presidentia l Power” in CH Sch roeder &
CA Bradley (eds) Presid ential Power Storie s (2009) 1 5
160 122
161 J Jay The Federal ist Papers: No 3 (accessed
22-08-2020)
162 Flaher ty Restoring the Global Judiciary 122-123
163 Youngstown S heet & Tube Co v Sawyer 343 US 579 (1952) 655
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
359
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
bow to the increasingly powerful execut ive that globalisation promotes” and
to the notion that the wa r on terror enables the President to ex his muscles
limitlessly in foreign affairs.164 T he cases resulting from the events of 9/11
demonstrate that t he court will st and up to the President in foreign affa irs
when directed by law and backed by the Constitution. Strikingly, these defeats
were handed to the execut ive in a time of th reat, fear and panic. Lately, the
refusal to defer to the executive in foreign affair s cases has also been notable.
Having restored separation of powers to its more functional version, SCOTUS
has now reafrmed t he wisdom of the founding pr inciple of not yielding to
the executive. When an imbalance of power happens, it makes the nee d for
independent judicial c ontrol more cr itical than it wa s perceived originally,
above all in foreign affairs.
Recently, SCOTUS has handle d more than ever before in its h istory
challenges that are i nherently global in nature.165 None of these problems
had been foreseen in the early days of its existence. The USA’s experience
with danger in the eighteenth century was in a world then dened by seas
that were hard to cross. Few events have ever shaken the USA to its core as
those of 9/11. Yet, countering t he consequences of those events did not e ntail
granting the President more power than his predec essors. It was precisely this
overreach in attempting to keep the nation secure that forced SCOTUS to rein
in the President. To do so was one thing, but to rebuke him was quite another.
Once the cou rt did that for the rst time, other rebukes in foreign af fairs
followed. Broad claims for deference, based on functional ist justicat ions
for presidential preeminence or even exclusivity in foreign affairs, had now
caught SCOTUS’s attention. With that the court entered the era of zero
deference. T he executive’s opportunistic arguments about foreign affair s to
justify a wide range of presidential actions no longer impressed the justices.166
Since 1989, the inte rnational scene ha s witnessed two far-reaching events
– the end of the Cold War and later the commencement of the war on terror.
Throughout this per iod, and after critical scrutiny, the inherent aws of state-
centrism have been exposed. This ring-fenced concept of state-cent rism no
longer served its accustomed purpose. It has been discredited and is now
regarded as a failure becau se of its inherent wea knesses. Its demise has come
as no surp rise. Once the domestic factor beca me dominant in foreign affairs,
the inuence of the judiciar y as a role player cou ld no longer be ignored.
Domestically, the judiciary has placed its stamp on practically every aspect of
human endeavour. For that reason alone, it is illogical to ignore, or even to try
denying, the inuence of the non-political branch of government on the foreign
policy-inuencing equation. For its part, the judiciary has become more vocal
and aggressive in taking on cases with foreign-policy implications. In its
pronouncements, t he judiciary has made it clear that it has t he constit utional
right to be involved. In addition, the judiciary has, on the one hand, interpreted
164 Flaher ty (2011-2012) NYL Sch ool LR 145
165 The death p enalty and pass port ca ses, and curren tly also those cases i nvolving im migration, brought
internat ional issues to the c ourt’s agenda
166 Flaher ty Restoring the Global Judiciary 120 -164
360 STEL L LR 2021 2
© Juta and Company (Pty) Ltd
https://doi.org /10.47348/ SLR/2 021/i2a8
its duty a s an obligation to keep the execu tive within cons titutional li mits and
free f rom overreach – in domestic as well as in foreign affairs – and, on the
other hand, interprete d constitutional and legislative prescriptions in allowing
the President to pursue policies with foreign affair s implications. All of th is
translates into re cognition of the judiciary’s role in foreign affairs.
The jud iciary’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 judicia ry should make foreign policy, there a re no structural reasons
why the judiciary should be excluded from disputes per taining to the conduct
of foreign affairs.167 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 intim ately involved where and when it sets parame ters within which the
legislative and executive branches can ope rate.168 A fact worth mentioning,
without belabouring the poi nt, is that none of t he justices involved in the
epoch-making decision on abor tion in Roe v Wade169 h ad any medical
expertise wh atsoever. They d id what was expected of them – to interpret the
Constitution and that led them to legalise abortion. These aspects are surely
not lost when it come s to justices consider ing cases with foreig n aff airs
implications.
A new per iod has now been ente red in which the relat ionship between
the judiciary a nd foreign affai rs takes on added rather tha n diminished
signicance. As Mar ijke Breuning, a preeminent scholar of foreign policy,
has observed:
“[The] eld of inquiry, would do well to pay more – and more serious – attention to the role of the
judiciary in foreign policy”.170
While the political branches of government most directly determine foreign-
policy outcomes, the contribution of the judiciar y is no less signicant. Many
foreign-policy q uestions require constitutional interpretations regarding the
authority vested in the executive and legislative branche s. Only SCOTUS
possesses the authority to int erpret the Constit ution and pronounce on those
interpretat ions. In the past 20 yea rs, the cour t has exposed not only c ertain
constitutional transg ressions relating to foreign affairs, and halted presidential
overreach by rebuking him in no uncert ain terms, but also pronounced on other
issues that rei nforced the position of the executive i n its handling of foreign-
policy mat ters. In t he USA, the judiciary has both evinced and emphasised
the unmistakable fact that it has a role in foreign affairs. The result is that its
inuen ce on foreign affair s has been establi shed. That role may appe ar small,
but its signicance is not. As it is real, it must b e recognised.
167 Franck (1991) Foreign Policy 86
168 A classic exam ple of such a parameter is t hat set by Sandra O’Connor J i n Hamdi v Rumsfeld 542 US 507
(2004) – no blank check for the President She expand s on this at 532: the judiciary “plays a necessary role
in maintai ning this deli cate balance of gover nance” and to st rike “the prop er constitution al balance here
is of great impo rtance to the Nat ion during this p eriod of ongoing combat ”
169 410 US 113 (1973)
170 M Breuni ng “Foreword” in R Eksteen The Role of t he Highest Courts o f the United States of A merica and
South Afric a, and the Europea n Court of Justice in For eign Affairs (2019) ix
THE ROLE OF THE JUDICIARY IN FOREIGN AFFAIRS
TO BE DULY RECOGNISED
361
© Juta and Company (Pty) Ltd
To continue reading
Request your trial