It seems likely that Chief Justice Roberts will author the much-anticipated opinion in Bond v. United States. This comes as no surprise. The Chief Justice has assigned much opinion-writing in close and/or important foreign relations cases to himself, perhaps consistent with how Chief Justices generally use their assignment power. In foreign relations cases, this trend began in Roberts' first term with Sanchez-Llamas v. Oregon and has continued throughout his tenure, with the Chief Justice writing for the Court in cases involving the political question doctrine (Zivotofksy v. Clinton), statutory pre-emption (Chamber of Commerce v. Whiting), military affairs (Munaf v. Geren), the Alien Tort Statute (Kiobel v. Royal Dutch Petroleum), treaty self-execution and executive pre-emption (Medellin v. Texas), and national security and the First Amendment (Holder v. Humanitarian Law Project). With a few exceptions, like Clapper v. Amnesty International, when Chief Justice Roberts has been in the majority, other Justices have written foreign relations opinions only for a unanimous or near-unanimous Court (in terms of outcome), as in Samantar v. Yousuf and Morrison v. Nat’l Aust. Bank. And Chief Justice Roberts has been in the majority in every foreign relations case in which he participated save two: Boumediene v. United States and BG Group v. Republic of Argentina. Even in these two cases, he staked out distinctive positions in dissenting opinions, maybe signaling a significant appetite for/interest in foreign relations and international law. Will Chief Justice Roberts become the nation’s most important author of foreign relations opinions in U.S. history? Only time will tell, of course, but I offer some preliminary thoughts in this post.
On the Court today, Chief Justice Roberts has had a consistent interlocutor in Justice Breyer, who has been on the opposite side of every non-unanimous foreign relations case (in terms of outcome) except U.S. v. Arizona. Justice Breyer has authored several significant foreign relations opinions in dissent or concurrence, including in Kiobel, Zivotofsky, Sanchez-Llamas, and Medellin. On the Rehnquist Court, Breyer authored an important concurrence in Sosa, but one that played little role in Kiobel (even in Justice Breyer’s own Kiobel concurrence). Chief Justice Roberts’ opinions are far more often for a majority of the Court, making at least his short-term impact more significant.
Looking to the immediate past, Justice Souter was probably the Court’s most important author of foreign relations cases during the Rehnquist Court’s eleven years (1994-2005) without any turnover. But two of Souter’s most significant decisions - on the Alien Tort Statute (Sosa) and executive pre-emption (Garamendi) - have already been at least partially superseded by Chief Justice Roberts’ work in Kiobel and Medellin. Justice Rehnquist himself wrote important foreign relations opinions during his early tenure on the Court, including Dames & Moore (while the future Chief Justice Roberts served as his clerk), his concurrence in the political question doctrine case of Goldwater v. Carter, extraterritorial application of the Fourth Amendment in United States v. Verdugo-Urquidez, and treaty interpretation in United States v. Alvarez-Machain. It seems almost certain that with the Bond decision, Chief Justice Roberts will surpass Rehnquist in terms of long-term influence over foreign relations law. Indeed, he probably already has with his work in Medellin (the most important case on treaty self-execution since the Marshall court and also an important separation of powers holding), Zivotofsky (partially displacing Goldwater by relaxing standing limitations and potentially opening the door to judicial review of a significantly expanded set of cases), and Kiobel (limiting the extraterritorial application of the Alien Tort Statute).
Looking further back, Justices Douglas and Black wrote many foreign relations opinions during their long tenures on the Court. Justice Harlan wrote an important opinion for the Court in Sabbatino and concurrences in Zschernig and Reid v. Covert, and of course Justice Holmes wrote the seminal treaty power and federalism opinion in Missouri v. Holland and the extraterritoriality opinion in American Banana Co. v. United Fruit Co. But the most important twentieth century justices in the field of foreign relations in terms of influence were probably Justices Sutherland and Jackson, although neither served lengthy terms on the Court. At the end of the 1930s, Justice Sutherland penned very significant defenses of executive and federal power in Curtiss-Wright and Belmont, laying part of the groundwork for the modern administrative state, as described by Professor Edward White in The Transformation of the Constitutional Regime of Foreign Relations. Justice Jackson, known for his pragmatism and judicial restraint and for serving as the Chief U.S. prosecutor at Nuremberg, wrote the famous concurrence in Youngstown (while the future Chief Justice Rehnquist served as a clerk), a dissent in Korematsu, a majority opinion in Johnson v. Eisentrager, and unpublished draft concurrences in Ex parte Quirin and Endo.
Justices Field and Story authored important nineteenth century foreign relations opinions. Justice Field wrote the Chinese Exclusion cases, Fong Yue Ting (in dissent), and the still doctrinally significant cases of Whitney (last in time rule) and In re Ross (extraterritorial application of the constitution). Justice Story was a scholar and an expert in admiralty and prize – the source of many early important foreign relations decisions -- including his opinions in U.S. v. Smith (piracy), The Armistad (slavery), a dissent in Brown v. United States (seizure of property during war)).
And, of course, there is Chief Justice Marshall who, by Edwin Borchard’s count, wrote 80 opinions on international law. These opinions and the famous “sole organ” speech still to some extent frame central issues in U.S. foreign relations law, including immunity (Schooner Exchange v. McFaddon), statutory interpretation (The Charming Betsy), treaty interpretation and self-execution (Foster v. Neilson), and the constitutional power of the executive branch (Little v. Barreme, Brown v. United States, the “sole organ” speech revived by Justice Sutherland in Curtiss-Wright). Other Marshall opinions on topics like prize (The Nereide) and slavery (The Antelope) remained doctrinally significant through the First World War and the Civil War respectively. Chief Justice Marshall promoted a robust protection of neutral rights and freedom of commerce that generally advanced U.S. interests, even if his opinions sometimes applied international law against the Executive Branch.
Several factors suggest that Chief Justice Roberts’ opinions might have lasting significance for foreign relations law that rivals or even surpasses that of Jackson, Marshall, or Sutherland - while acknowledging that such evaluations are inevitably somewhat subjective. First, Roberts' tenure on the Court will likely be long, like that of Chief Justice Marshall, affording him many opportunities to shape this topic. Second and more significantly, his opinions -- especially Zivotofsky v. Clinton and Medellin v. Texas – have already laid the groundwork for a distinctive foreign relations jurisprudence characterized by 1) judicial engagement with questions about the separation of powers between the Executive Branch and Congress and 2) waning deference to the Executive Branch (even under a Republican administration), except when statutory authorization is clear. The recent cert grant in Zivitofksy v. Kerry is likely, for example, to generate one of the Court’s rare constitutional decisions on separation of powers in foreign relations law. Medellin was notable in part for putting the actions of the Executive Branch (led by President George W. Bush) in Youngstown category III – arguably the first time a majority of the Court has explicitly done so – and for the separation of powers decision that resulted. Even if the Executive Branch ultimately wins in Zivitofksy v. Kerry (which it may) the Court has unequivocally signaled a more muscular, hands-on approach to foreign relations cases, over the consistent objection of the Executive Branch.
Finally, what I have identified as the two distinctive features of Chief Justice’s foreign relations opinions may be part of his general approach to executive power, including in the context of administrative law -- an argument I am developing in a longer article. The connection between the two is already clear from Roberts’ dissenting opinion in F.C.C. v. City Arlington, in which he wrote “[a]n agency's interpretive authority, entitling the agency to judicial deference, acquires its legitimacy from a delegation of lawmaking power from Congress to the Executive. Our duty to police the boundary between the Legislature and the Executive is as critical as our duty to respect that between the Judiciary and the Executive. See Zivotofsky v. Clinton.” Justice Sutherland ushered in an era of foreign affairs exceptionalism and broad executive power with implications for constitutional law generally. Youngstown, by contrast, imposed limits on executive power in foreign relations, at least as related to domestic law. And it may be Chief Justice Roberts who pushes the pendulum even further away from Curtiss-Wright and Belmont, perhaps with impact that extends well beyond foreign relations cases.