Few substantive areas have merited as little empirical scrutiny as the Supreme Court's decisions on the conduct of U.S. foreign policy. The Court's edicts on diverse domestic policy issues such as civil rights and liberties(1) and economic regulations(2) have been given a considerable degree of social science analysis, yet a systematic examination of rulings in this "high politics" domain have lagged far behind. While the public law literature has provided us with extensive historical and especially doctrinal analyses of Supreme Court decisions,(3) many scholars have seemingly accepted as axiomatic that foreign policy decisions have been rare and that when the Court does enter into the political thicket of foreign affairs, the decisions are almost always supportive of the president.
We believe that these twin assumptions regarding the president's prerogative power may not be completely accurate because of the Court's strategic importance as an institution in the separation of powers and the Court's role as an arbiter in the horizontal and vertical separation of powers.(4) In addition, most analyses of foreign policy tend to focus on specific periods in U.S. history,(5) but almost all of the research focuses a critical eye on the Supreme Court's watershed decision in the case of United States v. Curtiss-Wright Export Corp. (1936).(6) There, the Court supported a much earlier interpretation regarding a sole-organ theory of presidential power because the "President alone has the power to speak or listen as a representative of the nation."(7) We believe that interpreting the Court's role as an institution requires an analysis that covers the entire history of Supreme Court jurisprudence and conflict resolution.
The Supreme Court is, first and foremost, responsible for resolving disputes between the different institutions of government and the policy actors who challenge the executive's authority. Aware of its role in adjudicating conflicts that allocate or deny power, the Court serves as a check on executive power. As a policy player--particularly in this substantive area where the nation's security may be at stake--the Court may be careful to not openly defy the executive's foreign policy powers, even though it may ultimately limit his authority. Thus, the scholarly community may have accepted a veiled perspective on judicial decision making that takes a narrow view on what constitutes a "foreign policy" decisional outcome.
A few examples of where this has occurred in foreign policy decisions prove illustrative. New York Times Co. v. United States (1971) is generally taught as a classic case involving freedom of the press, but it was also a case where the executive branch lost the argument that the powers of the president and the effective conduct of the nation's foreign policy were at stake.(8) Youngstown Sheet & Tube Co. v. Sawyer (1952) is best remembered for the Court's opinions that discussed the parameters of executive power and the major defeat it occasioned for President Truman.(9) Yet, it was also related to the Korean conflict and the president's ability to manage the war-making effort. Far less known is Little v. Barreme (1804), where the Court held that President John Adams--much like Harry Truman--overstepped his powers by ordering a naval officer to take certain actions that exceeded the legislative authority the president had been given to patrol the high seas.(10) Thus, while much has been made of the High Court's reluctance to tackle foreign policy cases and limit presidential power, we believe a more detailed review of Court decisions is necessary to provide more thorough evidence about judicial decision making.
We do several things in this article. First, we provide a brief overview of the literature on the Supreme Court and foreign policy to detail why the common wisdom encourages the stereotype that the justices show deference to the president. Second, we follow recent research by taking a broader perspective in examining the doctrine of presidential prerogative power.(11) Third, we examine the stereotype of a "reluctant Court" by using the Court's language from its own opinions and discuss the manner in which we analyzed Supreme Court opinions that have foreign policy implications. Fourth, we explore trends in the propensity of the executive branch to win before the High Court during different eras in U.S. history and explore some of the more popular hypotheses about the Supreme Court and foreign policy. Finally, we find evidence to support the proposition that the emphasis on the executive's success is a relatively recent policy shift by the Court in the post-Vietnam era.
A Reluctant Court?
Most scholars have accepted the notion that the courts have had little to do with or have sidestepped cases involving foreign affairs.(12) As Henkin writes, "Thanks to both constitutional and political limitations, the paramount judicial prerogative of invalidating acts of the political branches has not loomed large in the conduct of foreign relations."(13) Thus, the stereotype of the reluctant Court is that it remains outside the sphere of foreign policy power and that the Court rarely involves itself with such policy matters. Moreover, when intervention does occur, the justices are only tertiary actors in limiting executive power.(14)
Undoubtedly, part of the reason that the stereotype exists is due to the Court's own doctrinal statements that it has issued when cases with foreign policy implications have been reviewed. When the specter of foreign policy issues do arise, the Court may recuse itself by claiming that the questions presented are nonjusticiable,(15) that the issues are political questions,(16) or that judicial intervention would involve the Court in matters beyond its competence.(17) The underlying rationale behind each of these policy directions is that legal interference into the political arena delegitimizes the Court and possibly tips the balance of power inappropriately toward the judicial branch.
While research has tended to accept the Court's doctrinal arguments for noninterference at face value, some foreign policy legal scholars have questioned whether the High Court's doctrine is fashioned to serve a broader view of institutional purposes. Thus, the Court itself may obscure the strategic nature of its role as an institution in balancing competing interests among the different policy players who may infringe on the executive's authority. Franck argues that the justices are pragmatic in finding ways to circumvent admitting that a foreign policy issue before them might involve political questions they have been reluctant to consider.(18) They may do this by "reclassifying" a case as something other than foreign affairs or by only paying lip service to the political question doctrine while deciding the case on the merits. While the political question doctrine is often used to justify judicial abstention, "there is little agreement as to anything else about it--its constitutional basis; whether abstention is required or optional; how courts decide whether a question is `political' and which questions are."(19) Such ambiguities give the Court latitude for deciding foreign policy cases, while it proclaims reluctance in addressing the real issues.
The second part to the stereotype of a reluctant Court is that when the justices do decide to enter the political arena, they defer to executive power. They do this by supporting the president's prerogative because of legislative action that echoes his policy decision(20) or by inferring legislative support for his actions from congressional inaction.(21) In the former situation, the Court has found support for its decision in the legislature's rubber stamp of executive decision making--either before or after the executive has already acted. In the latter circumstance, the Court has been loath to act as Congress's surrogate in challenging the chief executive and so has allowed the president to pursue his chosen policy.
As such, foreign policy analyses have focused on the president's win-win situation. That is, so long as Congress has given some indication of support or, at a minimum, has not negated the president's assertion of power by refusing to take any action whatsoever, the president can be fairly sure that he will prevail. Moreover, even if the president's "political" actions do ultimately lead to "judicial" consequences--as Alexis de Tocqueville would remind us--the Court may refuse to answer the policy dilemma in a definitive manner through the doctrine of nonjusticiability.(22)
Before we paint a picture that scholars have abdicated their role in evaluating executive power, we should note that some works and judges themselves have questioned the Court's role as an institution in balancing power between the different policy players. Silverstein argues that doctrinal interpretation of the Court's role in foreign policy has been misdirected because scholars have not sought to analyze the judiciary's role in policing both the horizontal and the vertical separation of powers.(23) Lower court involvement has been quantitatively examined at the trial but not appellate court level. Ducat and Dudley found that presidents cannot assume judicial support based solely on partisan preferences in foreign policy cases. Rather, support for the executive extends only so far as the judge's appointing president.(24) Moreover, judges themselves have stated that the courts are regularly involved in settling foreign policy disputes. Federal District Judge Harold Greene argued in Dellums v. Bush that "courts are routinely deciding cases that touch upon or even have a substantial impact on foreign and defense policy."(25)
We believe this interpretation of the Court as an arbiter of foreign policy disputes and the use of precedent to justify policy solutions is understandable given the broad discretion justices have when authoring their...