In today’s New York Times, Harvard Professor Noah Feldman has an interesting piece on the role of the US Supreme Court in the shaping of US foreign policy. Feldman examines the question of what role the US constitution and the Supreme Court play in the international order and discusses the two prevailing approaches within the Court. These are: the inward looking one, which is characterised by primarily affording constitutional rights to citizens only, which is headed by Chief Justice Roberts together with Justices Scalia, Thomas and Alito; and the outward looking, or cosmopolitan, one favouring the universal application of common values. The article takes its outset in the recent Supreme Court cases of Boumedien v. Bush (where the Court narrowly decided to afford habeas corpus protection to inmates held at the Guantanamo encampment) and Medellín v. Texas (where the Court found that international treaties, where these are not self-executing, do not form part of US law unless specifically enacted by Congress).
Although the article deals with US issues, it is highly recommendable as it does a good job of explaining the conflicting questions of international law that are often missing in European discussions on international law and order; those of democratic deficit and the interest of securing global application of basic human values. Towards the end, Feldman suggests that a way forward for the Court, when addressing the issue of whether to orientate itself inward or outward, the “conservative and liberal approaches to legitimacy and the rule of law need to be supplemented with a healthy dose of real-world pragmatism”. Although this is clearly no easy task, the latter emphasis on pragmatism certainly deserves attention and is likely to find support in the increasing group of legal scholars adhering to pragmatism as a legal theory.
You can read Prof. Feldman’s piece here.