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. …