Fordham Law School. He is also a longtime visiting professor at the Woodrow Wilson School of Public and International Affairs at Princeton University. He lives in New York City.Flaherty applied the “Page 99 Test” to his new book, Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs, and reported the following:
Anyone opening Restoring the Global Judiciary at page 99 will find a discussion of the Supreme Court’s epic decision, Youngstown Sheet & Tube Co. v. Sawyer. In that case, a majority of the Justices held that President Harry Truman could not order the seizure of the country’s steel mills in the face of an imminent nationwide strike in the midst of the Korean War. The specific passage on this recounts how some of the Justices came to this conclusion. Justice Hugo Black, writing for the Court, famously relied on a strict reading of the Constitution’s text provided the president no authority for his attempted action. Justice Felix Frankfurter, no less famously, goes on to argue that how the Constitution has operated over time supplements the text, but in this instance finds nothing to help Truman. Just after this page, the book goes on to review Justice Robert Jackson’s opinion, which proved to be the most thoughtful, eloquent, and enduring.Learn more about Restoring the Global Judiciary at the Princeton University Press website, and follow Martin Flaherty on Twitter.
Despite stopping just short of Jackson, the page offers a superb window in the the overall book. Restoring the Global Judiciary argues that the Supreme Court once did, and once again should, take a much more active role in cases involving foreign affairs. The point holds with special force when the courts are called upon to check the overreaching of the president or Congress, when fundamental rights are at stake, or both. Youngstown is perhaps the Court’s most famous and relevant illustration of what Restoring the Global Judiciary advocates. For that reason, it is something of a threat that runs throughout the work.
With Youngstown as a point of departure, the book makes three basic argument in support of the decision’s approach. First, it argues that the Founding generation intended the doctrine of separation of powers to apply as full to foreign as domestic affairs, with the corollary that the courts should uphold the law in cases before them. Second, the book notes that two hundred years of practice has put pressure on this understanding, thanks mainly to the expansion of the presidency as the US became of world power, but that this pressure should be resisted. Third, the book makes a complex argument that modern international relations theory gives a further reason for a robust judicial role. Finally, Restoring the Global Judiciary shows how these precepts should apply to modern doctrine, not least the Youngstown decision itself.
--Marshal Zeringue
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