Supreme Court, International Law & President Bush

5 Pages Posted: 18 Sep 2008 Last revised: 14 Oct 2009

See all articles by Stuart Malawer

Stuart Malawer

George Mason University (Schar School of Policy & Government)

Date Written: September 15, 2008


While overshadowed by rulings concerning the rights of detainees, executive power and judicial review in the war on terror, the Supreme Court recently issued three surprisingly significant decisions on international law.

These cases show a realistic reaffirmation by the Supreme Court of international law's central importance to U.S. jurisprudence, the rejection of a post-war conservative belittlement as well as an apparent disdain for it, and a prudent determination of Congressional intent and judicial precedent in global commerce.

While dealing with quite technical issues of the federal courts' subject-matter jurisdiction in alien torts, sovereign immunity and antitrust, these three decisions suggest a return to pragmatism by the Supreme Court. Taken together they provide a sensible balancing of foreign policy concerns within the context of the separation of powers and foreign relations. They also serve as a counterweight to the political degradation of international law that started with the Reagan-Bush era and continued through the current Bush administration.

Keywords: International Law, foreign policy, Bush Doctrine, constitutional law, use of force, american foreign policy

Suggested Citation

Malawer, Stuart, Supreme Court, International Law & President Bush (September 15, 2008). Available at SSRN: or

Stuart Malawer (Contact Author)

George Mason University (Schar School of Policy & Government) ( email )

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