When Judges Make Foreign Policy

After carrying it around for a week, I finally had a chance to read Noah Feldman’s fascinating recent piece in The New York Times Magazine – “When Judges Make Foreign Policy”. Provocative as always, Noah offers a unique positive and normative account of the Supreme Court’s engagement with international norms.

In Noah’s view, the Court does well to modulate (as it historically has) its receptivity to international law, in accordance with relevant geopolitical context. At the moment, thus, when the United States’ long-time status as the preeminent transnational advocate of the “Rule of Law” is in question, heightened judicial compliance with international law is in order. At other times, it will likely be less so. Hence, the notion of judges “making foreign policy”.

Fascinating as it is, however, I do not propose to take up this analysis – a kind of “hydraulic” approach to the Court’s engagement with international norms – here. For the moment, rather, I write only a challenge a handful of Noah’s points – three, in particular.

To begin, there is his – admittedly quite common – equivalence of “sovereignist” resistance to international law with the defense of democracy. To quote:

[T]he constitutional principle here [i.e., in the “conservative vision” of resistance to international law] is . . . one that most liberals also fully embrace: namely, the principle of democracy. . . . International law, as even its staunchest defenders must acknowledges, often fails to accord with democratic principle. Such law is not passed by a democratically elected Congress and signed by a democratically elected president.

I am doubtful that this simple account of the sovereigntist claim, however, can get us very far. I do not, to be clear, dispute the validity of sovereignist claims across the board. The assertion of sovereignty may well constitute an effective argument against the domestic application of international law in many respects. But I do not believe that assertion can be equated with democracy.


To begin, it is useful to recall Judith Resnik’s insightful emphasis on the growing embrace of international norms by executive and legislative authorities (i.e., the political branches) at the state and local level – a pattern others (including myself) have also explored. In such circumstances, there can surely be no offense to democracy.

More broadly, however, it is important to recall the operative question on the table: Whether the unelected, life-tenured judges of the Supreme Court should choose to accept or resist the bounds of international law. Whatever is at stake in this calculus, democracy is not.

Of course, by several degrees of separation, the Supreme Court’s decision-making enjoys a democratic pedigree. But if that’s the notion on which the the conception of sovereigntism as democracy turns, it bears recalling (as Noah rightly acknowledges) that the vast majority of international rules, and even institutions, arise from some initial – and often ongoing – exercise of domestic will.

A second passage in Noah’s analysis also caught my eye:

Liberals concede that the framers showed respect for international law, in part, because their country was new and revolutionary, and they sought legitimacy in the community of nations.

What, I wonder, are we to understand as the counterpoint to this concession by liberals? Surely not that nations’ obligation to international law – as distinct from their actual compliance with it – is keyed to their global stature?

Elementary game theory, to begin, would seem to question the coherence of such strategic (ab)use of international law. In a world of repeat plays, defection breeds defection, such that any compliance with international law would be difficult to rationalize along such lines.

More importantly, though, would even a crassly realist account embrace the argument that our actual duties under international law modulate with our power? Compliance with international law may or may not be consistent with our national interests. But surely an entirely instrumental paradigm of compliance cannot be.

One need not embrace Charles Fried’s conception of “trust” as an essential social institution to appreciate as much. I suspect, however, that no realist – or “conservative,” to use Noah’s terminology – could justify the direct assault such an conception makes against the stability of international commitments.

Whatever costs selective U.S. compliance with international law might have on our foreign relations, surely the notion that it is simply not applicable to us anymore, given our increased power, is not plausible.

Finally, a smaller – but still important – point: Speaking of the Supreme Court’s recent decision in Medellin v. Texas, Noah states that “[t]he Supreme Court held that the treaties obligating us to listen to the International Court of Justice were not binding law.”

In fact, the Court was unanimous in adopting just the opposite conclusion, stating that “the ICJ’s judgment in Avena creates an international law obligation on the part of the United States.” The critical question in Medellin, as such, was emphatically not whether the United States was bound by international law. Rather, it was simply how that obligation could and could not be implemented domestically.

This may not make the decision any more praiseworthy an incident of judicial “foreign policy.” In fact, it may be even worse. But it surely differs from an outright rejection of our obligation under international law.

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