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08/28/2020

My Review of Martin Flaherty's "Restoring the Global Judiciary"
Michael Ramsey

I've posted on SSRN Courts and Foreign Affairs: "Their Historic Role" (35 Constitutional Commentary, forthcoming 2020) (31 pages), a (mostly favorable) review of Martin S. Flaherty's book Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs (Princeton Univ. Press 2019).  Here is the abstract: 

This essay reviews Professor Martin Flaherty’s outstanding and engaging recent book Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs. As the book’s title indicates, Professor Flaherty takes a predominantly originalist/traditionalist approach, arguing that the U.S. Constitution’s text and the Framers’ understanding of it contemplate an active checking and protective role for the courts—particularly in foreign affairs, because foreign affairs offers the greatest risk of abuse by the political branches. Moreover, the book argues, U.S. courts traditionally undertook that role through the late-eighteenth and nineteenth centuries, when courts routinely resolved foreign affairs disputes on the merits, often ruling against the executive branch. Only relatively recently, the account runs, have courts begun to use various gatekeeping doctrines to vindicate growing reluctance to interfere in foreign affairs controversies. The book’s call, then, is for courts to “reclaim their historic role.”

Restoring the Global Judiciary is a particular challenge to those who exalt text, history, and tradition to guide constitutional decision-making. The modern rise of originalism and related approaches has occurred alongside decisions signaling concern over judicial involvement in foreign affairs, and calls for reduced judicial involvement in foreign affairs are often linked with praise for originalist-oriented adjudication. Yet, if Professor Flaherty is right, originalism’s rise should enhance, not reduce, courts’ willingness to constrain the foreign affairs executive.

This Review argues that Professor Flaherty is partly right. In particular, he is right about his three central historical points: that the Constitution’s text and the Framers’ design placed the judiciary in a checking role expressly to protect the separation of powers and individual rights; that this general design extended to foreign affairs; and that courts did commonly decide foreign affairs-related cases in the post-ratification era. Restoring the Global Judiciary gives an insightful, balanced and persuasive account of this history. Yet this Review also argues that Restoring the Global Judiciary deemphasizes substantial historical checks on the judiciary’s role. The Constitution did not create the judiciary as a supervisory force above the other players in the constitutional system. Rather, the courts are actors within the system restrained by its explicit limits, by their assumed institutional role, and by judicial prudence about the role courts can constructively fill. Failing to embrace these limits leaves Restoring the Global Judiciary with a grander vision of the courts than text and history actually support.

And here is the book description from Amazon for Professor Flaherty's book:

Why there should be a larger role for the judiciary in American foreign relations

In the past several decades, there has been a growing chorus of voices contending that the Supreme Court and federal judiciary should stay out of foreign affairs and leave the field to Congress and the president. Challenging this idea, Restoring the Global Judiciary argues instead for a robust judicial role in the conduct of U.S. foreign policy. With an innovative combination of constitutional history, international relations theory, and legal doctrine, Martin Flaherty demonstrates that the Supreme Court and federal judiciary have the power and duty to apply the law without deference to the other branches.

Turning first to the founding of the nation, Flaherty shows that the Constitution’s original commitment to separation of powers was as strong in foreign as domestic matters, not least because the document shifted enormous authority to the new federal government. This initial conception eroded as the nation rose from fledgling state to superpower, fueling the growth of a dangerously formidable executive that today asserts near-plenary foreign affairs authority. Flaherty explores how modern international relations makes the commitment to balance among the branches of government all the more critical and he considers implications for modern controversies that the judiciary will continue to confront.

At a time when executive and legislative actions in the name of U.S. foreign policy are only increasing, Restoring the Global Judiciary makes the case for a zealous judicial defense of fundamental rights involving global affairs.