Rethinking early judicial involvement in foreign affairs: an empirical study of the Supreme Court's docket.

• Author: Lavinbuk, Ariel N.

CONTENTS INTRODUCTION I. THE HISTORICAL UNDERPINNINGS OF THE FOREIGN AFFAIRS DEBATE A. The Mainstream Position B. The Revisionist Position C. The Limits of Traditional Scholarship II. ANALYZING DOCKETS A. Two Thoughts on Research Design B. The Promise of Docket Analysis C. Reconstructing the Foreign Affairs Docket III. THE FOREIGN AFFAIRS DOCKET OF THE JAY AND MARSHALL COURTS A. Caseload B. Jurisdiction 1. Original Versus Appellate 2. Admiralty Jurisdiction 3. State Versus Federal C. Parties D. Areas of Law 1. Maritime Disputes 2. Treaties E. Summary IV. EVALUATING THE DEBATE ON JUDICIAL INVOLVEMENT IN FOREIGN AFFAIRS A. The Judicial Presence in Foreign Affairs B. Degrees of Judicial Deference C. The Role of International Law CONCLUSION APPENDIX Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. (1)

INTRODUCTION

This past Term the Supreme Court seemed everywhere present in foreign affairs. Overcoming concerns that it was intruding into an area often considered the exclusive province of the political branches, (2) the Court addressed critical questions regarding presidential power, (3) legislative authorization, (4) and judicial cooperation in the international system. (5) With one exception, the Court reached the merits in every foreign affairs case it heard. (6) lf the Court was ever reticent to address matters beyond the water's edge, it is certainly not today.

Despite widespread consensus that today's international environment is more complex than that of the Founders, (7) history carries great weight in the Court's foreign affairs opinions. (8) Precedents from the Courts of Chief Justices Jay and Marshall (9) frame discussions that Blackstone and early English practice clarify. (10) Perhaps because the words "foreign affairs" do not appear in the Constitution and because the powers associated with it are imperfectly divided among the three branches of government, discussion routinely focuses on original intent. (11)

In Sosa v. Alvarez-Machain, (12) the much-anticipated case challenging the Alien Tort Statute (ATS), (13) the Court took history one step further. (14) In holding that "courts should require any claim based on the present-day law of nations to rest on a norm of international character ... defined with a specificity comparable to ... 18th-century paradigms," (15) the Court directly incorporated historical practice into the resolution of present-day disputes. As a result, the need to understand the scope and nature of early judicial involvement in foreign affairs has never been greater.

As the Court noted in Sosa, however, lawyers and scholars "advance radically different historical interpretations" of the judicial role in foreign affairs. (16) While mainstream scholars argue that the authority of federal courts "to declare [void] all acts contrary to the manifest tenor of the Constitution" (17) does not differentiate between matters foreign and domestic, revisionists contend that federal courts were meant to be "the least dangerous" branch, with "no influence over either the sword or the purse," (18) and therefore have little role in international affairs. In recent years, these conflicting views have driven an increasingly bitter and contentious debate, not only on the role of customary international law at issue in Sosa, but also on treaties, federalism, and separation of powers. (19) Though the Court may have settled matters between Jose Francisco Sosa and Humberto Alvarez-Machain, it is unlikely to have brought the same finality to scholars. (20)

Though they differ in their understanding of original meaning, mainstream and revisionist scholars alike seem to share a belief that, in scouring the pages of Vattel, (21) The Federalist, and the Records of the Federal Convention of 1787, (22) they can somehow rediscover a "Founding wisdom" that might definitively explain those decisions of the Jay and Marshall era so favored by today's Supreme Court. Neither side seems comfortable acknowledging that the Framers themselves did not agree on the scope or distribution of the foreign affairs power. The historical canon does not reflect a single viewpoint and is unlikely to ever prove dispositive for either side. (23)

More troubling, basic empirical questions about the Court's early involvement in foreign affairs remain unanswered. How many foreign affairs cases did the Supreme Court hear under Jay and Marshall? Who was party to these disputes and how did they reach the Court? What were the issues in these cases (e.g., treaty disputes, trade regulations, etc.)? Are trends evident that transcend specific areas of foreign affairs or migrate between them? For too long, the modern debate has been framed by two untenable positions: that bold dicta from early cases should be considered authoritative simply because "Article III extended the judicial power of the United States ... [to] a large class of international cases," (24) or that "much of the [customary international law] that courts had applied in the nineteenth century ... ha[s] become irrelevant," in part because it originated in prize cases. (25) Without a common empirical starting point, neither of these claims can be evaluated fairly, allowing mainstream and revisionist scholars to continue advancing divergent views of history without resolution.

This Note presents a new understanding of early judicial involvement in foreign affairs by challenging both the method and the substance of the current debate. Taking signals from the decisions they read, lawyers and scholars alike thus far have looked for cohesion or disjuncture among comments in a limited subset of the most cited cases and primary sources. (26) Such a strategy is analytically dubious and has allowed scholars to address only those materials most congenial to their own positions. In contrast, this Note suggests that a wider examination of cases is necessary to move past the present stalemate. To do so, it draws on the methodological insights of another discipline--political science--that has become adept at analyzing the kind of complex institutional behavior at issue here. This more systematic analysis suggests that, while the mainstream position is correct to assert a longstanding trend of judicial involvement in foreign affairs, it has not fully explored the level or nature of that involvement nor the factors contributing to it.

This Note proceeds in four Parts. Part I evaluates the foreign affairs debate, recounting the central historical claims of the mainstream and revisionist narratives and identifying the shortcomings of each. Rather than take issue with the particular historical sources favored by each school, however, I suggest that scholars in both camps have reason to reexamine whether present modes of inquiry are able to offer clear and definitive guidance about the Court's role in foreign affairs.

Part II presents a new approach to understanding early judicial involvement in foreign affairs. I argue that, by aggregating certain objective elements of the Supreme Court's docket, a method I term "docket analysis," scholars can discern larger patterns that might not be evident when cases are viewed in isolation. By first identifying all instances of judicial involvement in foreign affairs, docket analysis avoids the data-mining problems characteristic of recent legal scholarship. As a result, it can identify aspects of the Court's role that have been overlooked by both parties to the modern debate.

Part III analyzes the docket of the Supreme Court under Chief Justices Jay and Marshall. To this end, I constructed a data set containing every foreign affairs case on the Court's docket from 1791 to 1835, identifying 323 such cases from a total caseload of more than 1300. (27) Using this data set, I present a number of summary statistics pertaining to the jurisdiction, parties, and areas of law on the Court's foreign affairs docket. In doing so, I offer a set of objective facts about early judicial involvement in foreign affairs and inject new empiricism into a debate sometimes lost to generalizations.

Part IV revisits the modern debate in light of my empirical findings and comments on three contentious issues: the level of the early Court's involvement in foreign affairs, the degree of deference it afforded the political branches, and its use of international law. I argue that in the Jay and Marshall era the day-to-day business of the Court was foreign affairs. While this interpretation of history conforms with the mainstream consensus, I argue that its primary advocates have not fully understood the degree of this judicial involvement or the reasons for it. With regard to questions about deference and international law, I contend that docket analysis suggests new areas of research long overlooked by traditional research methods. Ultimately, this Note cannot end debate over the role of the Court in foreign affairs. But it can clarify it.

1. THE HISTORICAL UNDERPINNINGS OF THE FOREIGN AFFAIRS DEBATE

   Debate over the appropriate role for courts in foreign affairs engages some of today's most sensitive political issues. (28) Though not often the primary focus of inquiry, arguments from original intent are prevalent throughout the debate. (29) But despite a common set of scholars writing on all the relevant issues--judicial review, federalism, and customary international law--no single work has summarized the basic historical assumptions of each school, mainstream and revisionist. To the extent necessary to evaluate their assumptions in Part IV, I provide such an overview here.

   1. The Mainstream...