No Damage Without Damage Control: The Judiciary's Refusal to Engage with the Foreign Affairs Docket

• Author: Elliot Fuchs
• Position: J.D., Georgetown University Law Center (May 2023); B.A., Yeshiva University (2019)
• Pages: 687-714

No Damage Without Damage Control: The

Judiciary’s Refusal to Engage with the Foreign

Affairs Docket

ELLIOT FUCHS*

INTRODUCTION

A governmental body that cannot do damage-control should not be allowed to

do damage in the first place. It is a rather intuitive concept, but it is one that the

Framers evidently overlooked when they wrote Article III of the Constitution.

Every time a court, particularly the Supreme Court, renders a decision that

impacts foreign policy, it acts with the potential to cause international strife,

absent the ability to remedy that strife.

Indeed, Supreme Court decisions are impactful. That is why people care so

much about who is writing them and what they say. Where foreign sovereigns are

involved, there is no doubt that interested international parties are awaiting the

decision of the Court, just as the litigants are. Sometimes, in especially rare

instances, the foreign sovereign may be a litigant.

But whereas the political branches, especially the executive, have the chance

to hedge their foreign policy actions through channels of diplomacy, the Court—

after rendering an impactful decision—has no such capability. For example, it

would seem inappropriate, or at least strange, for Chief Justice Roberts to reach

out to an international leader to explain why that international leader should not

be upset by a particular judicial outcome.

A world where the Court would interact with foreign sovereigns would be

especially problematic, considering it would open the door to dissenting judges

addressing the international landscape. This would undermine—as dissents do—

the decision reached by one branch of the United States government.

1

This, of course, is not to say that dissents are bad. Certainly, they play an important role in democracy.

See generally Ruth Bader Ginsburg, The Role of Dissenting Opinions, 95 Minn. L. Rev. 1 (2010) https://

scholarship.law.umn.edu/mlr/428/?utm_source=scholarship.law.umn.edu%2Fmlr%2F428&utm_medium=PDF&

utm_campaign=PDFCoverPages. But, insofar as international politics is concerned, a dissent can undermine the

voice of the government inasmuch as the decision is speaking for the government.

* J.D., Georgetown University Law Center (May 2023); B.A., Yeshiva University (2019). © 2022, Elliot

Fuchs.

1.

687

Not only would such an action by Chief Justice Roberts be politically awk-

ward, but as will be discussed below, doing so would conceivably be a breach of

the ethical standards expected of a judge.

2

Though it is true that “Supreme Court Justices aren’t required to observe the code [of ethics],” it would

certainly be preferable if they carried out their extraordinarily important role ethically. Scott Bomboy, Why the

Supreme Court isn’t compelled to follow a code of conduct, NATIONAL CONSTITUTION CENTER (2016), https://

constitutioncenter.org/blog/why-the-supreme-court-isnt-compelled-to-follow-a-conduct-code/ [https://perma.

cc/W8K4-73M6]. See also David Lat, Judicial Notice (3.27.22): Who’s Afraid of Virginia Thomas?, ORIGINAL

JURISDICTION (March 27, 2022), https://davidlat.substack.com/p/judicial-notice-032722-whosafraid?token=

eyJ1c2VyX2lkIjozODU0NjQyOCwiXyI6IjlZVjlBIiwiaWF0IjoxNjQ4NDE0MjQyLCJleHAiOjE2NDg0MTc4

NDIsImlzcyI6InB1Yi0yMjk5MzMiLCJzdWIiOiJwb3N0LXJlYWN0aW9uIn0.TZ5vrqLj1b0IZcLs3fH8Ls3fH8

pxNuph44rbvMIve9iYIiaU&s=r [https://perma.cc/5JJ6-YDGZ] (“Even though the justices aren’t subject to the

code of judicial ethics applicable to lower-court judges, they are subject to 28 U.S.C. § 455, which provides that

‘any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned.’”). Indeed, some scholars have advocated for the Supreme

Court to adopt the same ethical rules binding on other courts. See e.g., Kenneth Jost, Time For Ethics Reform at

Supreme Court, JOST ON JUSTICE (Apr. 2, 2022) http://www.jostonjustice.com/2022/04/time-for-ethics-reform-

at-supreme-court.html [https://perma.cc/RM6L-XS67]. Absent the ethical guardrails, some spectators have

questioned whether the Justice’s behavior would hold up if considered against the Model Code of Judicial

Conduct binding on all other federal judges. See e.g., Fix the Court, Code of Ethics, https://xthecourt.com/x/

codeofethics/#:�:text=The%20nine%20justices%20of%20the,and%20participation%20in%20political%20activities

[https://perma.cc/V3HQ-39VZ] (last visited Apr. 18, 2022) (“Research compiled from Fix the Court points out that

while none of the justices has committed a removal offense, all nine of them are culpable of various ethical

oversights, from leaving assets off their annual nancial disclosure reports to speaking at partisan fundraisers to

ruling on cases despite credible conicts of interest.”).

As such, we live in a world where the Court can make decisions for the coun-

try, but cannot speak for it. As will be explored further below, this is an undesir-

able arrangement, to put it mildly.

3

The Framers of the Constitution wanted the judiciary involved in disputes

relating to foreign affairs. Article III of the Constitution itself anticipates their

involvement, through its reference to maritime, treaties, and ambassadors.

4

The

Framers expressed that intent again in the early days of the Republic. Indeed, “[i]

n the Washington administration’s view, judicial decision-making did not under-

mine presidential [foreign] policymaking – it complemented it.”

5

This tendency

did not start and end with the Washington administration. On the contrary, “the

executive branch has regularly urged the federal courts to determine [interna-

tional law] as matters of federal law.”

6

This is a problem. This paper will show that the judiciary—understanding that

they are ill-equipped to handle matters of international consequence—have time

and again declined to assume foreign policy powers, despite the fact that the

courts frequently take power for itself in other contexts.

7

Where cases come

2.

3. See infra, Part III.

4. U.S CONST. art. III.

5. Kevin Arlyck, The Courts and Foreign Affairs at the Founding, 2017 B.Y.U L. REV. 1, 7 (2017).

6. Harold Hongju Koh, Is International Law Really State Law?, 111 HARV L. REV. 1824, 1843 (1998).

7. See, e.g., Marbury v. Madison, 5 U.S. 137 (1803); see generally Josh Chafetz, Nixon/Trump: Strategies

of Judicial Aggrandizement, 1 GEO L. REV. 126 (2021).

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