Global Order of the Court
For worse, not better, we live in a time when evidence, expertise, even reality itself, matter less than uniformed assertion. Just repeat a baseless claim often enough and sooner or later it must be true. It sadly goes without saying that this technique provides a ticket to the White House and the Executive Branch more generally. It should, however, more often be said that the Supreme Court is not above the practice. This indulgence would be bad enough in itself, especially for an institution whose legitimacy is based upon reasoned fidelity to the law rather than a majority of ballots. Yet merely repeating an assertion without more is doubly problematic when the Court does so to sidestep its duty to check misconduct of an Executive Branch that pushes past the borders of legality—including and especially in foreign affairs. The present symposium arises out of the Author’s recent book that refutes this refrain. Restoring the Global Judiciary: Why the Supreme Court Should Rule in Foreign Affairs aims to reinvigorate the increasingly marginalized case for robust judicial role in cases such as Hernández v. Mesa. Its argument is straightforward. The Supreme Court and the federal judiciary have not only the power, but also the duty to apply the law, including international law, in cases properly before them without deference to the political branches.
Recommended Citation: Martin S. Flaherty, Global Order of the Court, 43 Fordham Int'l L.J. 1229 (2020).