Foreign relations law in the Roberts Court: the first decade.

Position:Proceedings of the 2015 Annual Meeting of the American Society of International Law: Adapting to a Rapidly Changing World - Discussion

This panel was convened at 9:00 a.m., Thursday, April 9, by its moderator David Moore of Brigham Young University Law School, who introduced the panelists: Melissa Arbus Sherry of Latham & Watkins LLP; Harlan Cohen of University of Georgia School of Law; Jean Galbraith of University of Pennsylvania Law School; and Ganesh Sitaraman of Vanderbilt University Law School.


In its first decade, the Roberts Court has decided a host of foreign relations law cases. These cases have addressed a wide range of issues, including foreign sovereign and foreign official immunity (Republic of Argentina v. NML Capital, Ltd. (2014); Samantar v. Yousuf (2010); Permanent Mission of India v. City of New York (2007)); treaty self- execution (Medellin v. Texas (2008)); treaty interpretation, including in the face of a ruling from the International Court of Justice (Abbott v. Abbott (2010); Sanchez-Llamas v. Oregon (2006)); statutory and constitutional habeas rights of detainees (Boumediene v. Bush (2008); Munaf v. Geren (2008)); the legality of trying detainees by military commission (Hamdan v. Rumsfeld (2006)); preemption of state law bearing on foreign affairs (Arizona v. United States (2012); Chamber of Commerce v. Whiting (2011)); personal jurisdiction over foreign defendants and concerning foreign events (Daimler AG v. Bauman (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown (2011); J. McIntyre Machinery, Ltd. v. Nicastro (2011)); the extraterritorial reach of federal statutes and common law causes of action (Kiobel v. Royal Dutch Petroleum Co. (2013); Morrison v. National Australia Bank Ltd. (2010)); application of the political question doctrine (Zivotofsky v. Clinton (2011)); the scope of arbitration under a bilateral investment treaty (BG Group PLC v. Republic of Argentina (2014)); and the interpretation of treaty implementing legislation and other legislation relating to foreign affairs (Bond v. United States (2014); Kirtsaeng v. John Wiley & Sons, Inc. (2013); Mohamad v. Palestinian Authority (2012)).

These cases provide an opportunity to address whether the Roberts Court--with its four new Justices (Roberts, Alito, Sotomayor, and Kagan)--has departed from the foreign relations law jurisprudence of prior Courts. Certain scholars, including two members of this panel, have suggested that the Court has. This panel explores that question.

* Professor of Law at Brigham Young University, J. Reuben Clark Law School.


By Melissa Arbus Sherry ([dagger])

I want to first thank Dave Moore and Bill Dodge for having me here and for organizing this panel. My role on this panel is to offer insights into the United States Supreme Court's (the Court) foreign relations cases not from an academic perspective, but rather from a practitioner's perspective. More specifically, I approach the cases as an appellate practitioner who, at times, works on international law cases--not as an international law practitioner or specialist. In that respect, my generalist vantage point is hopefully in line with that of the Justices and the lower courts when foreign relations cases appear on their respective dockets.

The Roberts Court's "foreign relations" jurisprudence includes an incredibly broad brush of cases that touch on very different subject matters and involve very different legal doctrines. As a practitioner, I find it difficult to view these cases as an undifferentiated whole. Instead, for me, the cases fit within larger trends emblematic of the Roberts Court. Some straddle different categories. And some are more difficult to classify than others. Viewed this way, the case law suggests that the presence of a foreign relations issue is not determinative of how a case will be decided. To be sure, the Court is no longer willing to defer to the political branches to the same extent it has in the past. Litigants (including the United States) need to set forth detailed legal arguments as to why the political branches got it right (as a statutory matter, as a constitutional matter, or otherwise) and can no longer just say "trust us." But such heightened scrutiny does not necessarily translate into different results.


Let me start by focusing on one perceived trend that has been mentioned by my fellow panelists: whether the Roberts Court has been "reaching out" to decide foreign relations issues. The Court has taken certain actions that would seemingly support this theory. For example, the Court sua sponte requested supplemental briefing in Kiobel v. Royal Dutch Petroleumon the broader question whether protection under the Alien Tort Statute extended to extraterritorial conduct. And it granted the first petition for a writ of certiorari in Zivotofsky ex rel. Zivotofsky v. Clinton, (2) despite the politically sensitive nature of the issue and arguments that the case was not traditionally certworthy.

That said, the Court's decisions to "reach out" and take certain foreign relations cases can be explained in other ways. For example, some note the Court's decision to grant review in Bond v. United States. (3, 4) I would argue that the Court's actions in Bond exemplified a different trend, having nothing to do with the international aspect of that case. In recent terms, there have been a handful of grants in criminal law cases where (at least initially) the Court seems to think that the prosecution overreached in some way. Yates v. United States, (5) the so-called "fish case," is a recent example. I suspect that, at least in the first round, Bond piqued the Court's interest for a similar reason.

The other point worth noting is that while the Court may be more willing to reach out and consider or reconsider critically important (and, at times, politically sensitive) foreign relations questions than in years past, that does not mean the Court is necessarily more willing to actually issue broad decisions on these questions. Here too, Bond is a prime example. When the Court granted review the second time, it appeared that the Court was poised to decide a constitutional issue of huge significance. Then, the decision was released and the Court resolved the case on fairly case-specific statutory interpretation grounds. Even though the government technically lost, in many ways the narrow ground for decision made Bond a victory for the government. Whether you view these surprisingly narrow decisions as buyer's remorse or something else entirely, there appears to be significantly more restraint in deciding these difficult cases than (perhaps) there is in granting the questions presented in the first place. But this too is not unique to foreign relations cases. For example, in Halliburton Co. v. Erica P. John Fund, Inc., (6) a securities case, the Court reached out to reconsider the "fraud on the market" theory, but its decision was far less dramatic than many expected.

The lesson, then, is that litigants should understand that the Roberts Court will approach "foreign relations" cases with a critical eye. The Court expects advocates to be able to defend what may have seemed like well-settled principles and to substantiate claims that foreign affairs will be impacted by the Court's decision. This has been shown by the Court's willingness to ask questions that, in years past, perhaps would not have been asked (or re-asked), and also by the Court's willingness to scrutinize the political branches rather than accepting their say-so. But any increasing tendency to reach out and decide politically sensitive foreign relations issues is often tempered by judicial restraint exercised later in the decision-making process. And the Court's tendencies in this area often have analogues in the purely domestic docket. In short, practitioners in this area ought to be prepared for heightened scrutiny, even if the skepticism exhibited by a grant of certiorari or by questions at oral argument will not necessarily dictate the outcome.


Another note of importance to the practitioner is the Court's treatment of a significant number of these foreign relations cases as traditional cases of statutory interpretation, rather than as a special class of cases where deference to the political branches is the rule. In these cases, and in the Court's analytical approach to statutory interpretation more generally, the Court has shifted its focus to statutory text. At the very least, any question involving statutory interpretation (whatever the subject matter) will include a discussion of the plain text, the statutory structure, the statutory (and, perhaps, legislative) history, and so on. What is clear from the cases is that the Roberts Court follows that doctrinal approach even in foreign relations cases. From a practitioner's perspective, then, any litigant is well- advised to engage in a detailed and traditional textual and historical analysis for any case that implicates the meaning of a statute.

This is not to say that the foreign relations aspect of a case is not relevant. Indeed, it is quite relevant, particularly to the extent that it relates to certain canons of construction that inform the statutory analysis. Cases involving the presumption against extraterritoriality, for example, fit nicely within the statutory interpretation construct. In this respect, foreign relations issues are certainly relevant when deciding how to interpret a statute. The principles underlying that doctrine are grounded in traditional foreign relations concerns, including interfering with other nations' sovereignty, speaking with one voice, reciprocity, and so forth. Accordingly, cases such as Kiobel and Morrison v. National Australia Bank Ltd., (7) make clear that foreign relations...

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