Treaties in the Supreme Court: 1946-2000

68 Pages Posted: 26 Feb 2010 Last revised: 7 Mar 2010

See all articles by Paul B. Stephan

Paul B. Stephan

University of Virginia School of Law

Date Written: Febuary 2010


This paper, a chapter in a forthcoming book on International Law and the Supreme Court, examines the treaty decisions of the Court during the postwar era, up until the second Bush Administration. Three patterns stand in the many (roughly 130) decisions. First, the Court acted as if the immediately preceding period – the New Deal, then the War – created a sharp break with the past, freeing the Court to address many questions as novel rather than rooted in settled practice. Second, the Court largely resisted the invocation of treaties as authority contradicting congressional statutes and executive practice regarding matters of public law, but gave greater effect to treaties that addressed what the Court perceived as matters of private interest – disputes over property ownership, contract enforcement, and liability for torts. Third, the Court did invoke treaty-based rules in cases where it perceived the desire of Congress and the President to draw on international law to fill out the meaning of particular statutes.

Keywords: treaties, international law, supreme court, direct effect, interpretation

Suggested Citation

Stephan, Paul B., Treaties in the Supreme Court: 1946-2000 (Febuary 2010). Virginia Public Law and Legal Theory Research Paper No. 2010-06, Available at SSRN: or

Paul B. Stephan (Contact Author)

University of Virginia School of Law ( email )

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