Case Scenario:
The Supreme Court and Foreign Policy
The Supreme Court cannot become involved in a foreign policy, or any other policy, unless there is a legal dispute about it. If there is a legal dispute, the Supreme Court must decide whether or not to hear it. Most Supreme Court cases related to foreign policy focus on the powers of the executive and legislative branches, as seen in United States v. Curtiss-Wright Export and Hamdan v. Rumsfeld. Less often, the focus is on the extent to which foreign policies infringe on individual rights (e.g., the treatment of detainees).
Critics of the Supreme Court’s lack of involvement in foreign policy argue that foreign policy cases about individual rights should be heard, given the Supreme Court’s responsibility to uphold individual rights outlined in the Constitution. Supporters of the Supreme Court’s lack of involvement in foreign policy argue that in areas as publicly controversial as foreign policy and individual rights, the Supreme Court should defer to elected officials in the executive and legislative branches. For this Discussion, you consider these and other arguments and their implications on policy.
To prepare for this Discussion:
- Review the “War Powers Act of 1973.” Reflect on the power of Congress and the President regarding war time issues.
- Review the article “Rethinking Early Judicial Involvement in Foreign Affairs: An Empirical Study of the Supreme Court’s Docket.” Focus on the two sides of the debate on judicial involvement in foreign affairs, and the history of judicial involvement in foreign affairs.
- Review the article “The Supreme Court: Missing in Action.” Think about the arguments for the Supreme Court’s involvement in foreign policy. Also, reflect on foreign policy cases and/or issues in which the Supreme Court has chosen not to be involved. Consider the implications of the Supreme Court’s lack of involvement.
- Review the Goldwater v. Carter, United States v. Curtiss-Wright Export, and Hamdan v. Rumsfeld cases in the LexisNexis Academic database. Consider how the Supreme Court ruled in each of these cases and any positive or negative impact of such rulings.
- Take a position for or against the Supreme Court's involvement in foreign policy.
- Consider the implications of the Supreme Court’s involvement or lack of involvement in foreign policy.
With these thoughts in mind:
Write an argument for or against the Supreme Court’s involvement in foreign policy. Justify your argument with academic resources. Then explain at least two implications of the Supreme Court’s involvement or lack of involvement in foreign policy. Be specific.