Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs.

• Author: Hoff, Samuel B.

Flaherty, Martin S. Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs. Princeton: Princeton University Press, 2019. xiv + 325 pages. Hardcover, $35.00.

In this timely book, author Martin Flaherty calls for restoring the constitutional balance through more active intervention of American courts in the foreign policy realm. A Fordham University law professor and visiting professor at Princeton University, Flaherty has an extensive background in international human rights, including direct participation in human rights missions in Europe, Asia, Africa, and North America.

The text is divided into four sections, preceded by an Introduction. Flaherty asserts that executive aggressiveness in the wake of the September 11, 2001 attacks demonstrated that Americans apparently forgot the lessons emanating from the 1952 Youngstown Sheet and Tube v. Sawyer case. Among those is that the federal courts serve as a check on an extreme presidential action regardless of policy milieu.

Part I, encompassing Chapters 2 and 3, examines how the separation of powers mechanism was integrated into governing documents during the founding period. In the post-revolutionary, pre-Constitution era, the national government under the Articles of Confederation together with most state governments tilted toward legislative supremacy. By replacing the Articles, the new government added two more branches. Within Article III, the Constitution specified a role for the courts, including in the foreign policy arena.

In Part II, which includes Chapters 4 through 6, Flaherty provides an overview of the court's role in the international sphere from the George Washington administration to the outset of the current century. Though he is credited with engaging rather than avoiding courts, President Washington's successors did not always display the same behavior. For instance, actions such as the Louisiana Purchase, war with Mexico, and annexation of Texas and Hawaii were taken without court interference. In the Supreme Court's 1936 U.S. v. Curtiss Wright decision, justices strongly argued that the president is the dominant authority in foreign affairs. Following World War II, when the national security network was put in place and a permanent standing army established, executive influence in foreign affairs grew to a dangerous degree.

Conversely, Flaherty points to times throughout the nation's development where courts have utilized international...