The Judicial Philosophy of Chief Justice John Roberts: An Analysis Through the Eyes of International Law

32 Pages Posted: 7 Jul 2015 Last revised: 3 Sep 2017

See all articles by S. Ernie Walton

S. Ernie Walton

Regent University - Regent Law Center for Global Justice, Human Rights, and the Rule of Law

Date Written: July 7, 2015

Abstract

This Article is about two things: international law in the United States and Chief Justice John Roberts’s judicial philosophy. How do the two relate? Quite nicely, actually. First, Chief Justice Roberts has penned majority opinions in several landmark cases directly addressing important international law issues. Second, cases involving international law serve as an excellent window into a Justice’s judicial philosophy. Consider Chief Justice Roberts’s concluding paragraph in Medellin v. Texas, a watershed case in which the Court held that judgments of the International Court of Justice (ICJ) are generally not enforceable in United States courts:

"In sum, while the ICJ’s judgment in Avena creates an international law obligation on the part of the United States, it does not of its own force constitute binding federal law that pre-empts state restrictions... Nothing in the text, background, negotiating and drafting history, or practice among signatory nations suggests that the President or Senate intended the improbable result of giving the judgments of an international tribunal a higher status than that enjoyed by "many of our most fundamental constitutional protections."

Federalism, separation of powers, treaty interpretation, U.S. sovereignty — all issues touched on in just two sentences. Moreover, as international law expands from governing only relations between States to touching every area within the jurisdiction of the "several states," the status of international law in the United States has come under increasing scrutiny. No longer is it uncontroversial to say that "international law is part of our law." Indeed, liberal and conservative justices routinely split over cases involving international law.

Part Two of this Article will provide an overview of five international law issues in the United States ((1) the presumption against extraterritoriality; (2) international human rights litigation in United States federal courts; (3) the doctrine of self-executing treaties; (4) the scope of the treaty power; and (5) customary international law as federal common law) and then provide an update on the current status of these issues under Chief Justice Roberts. Part Three draws conclusions about Chief Justice Roberts’s judicial philosophy based on the cases discussed and ultimately concludes that the Chief Justice is a "prudentialist," a judge who holds fast to "the conviction that federal judges must cultivate the virtues of modesty and humility, staying true to their constitutional duty to interpret the law while fending off whenever possible the temptation to intrude upon the proper provinces of other public and private institutions."

Keywords: International Law, John Roberts, Judicial Philosophy, Prudentialism, Presumption Against Extraterritoriality, Kiobel, Alien Tort Statute, Self-Executing Treaties, Medellin, Treaty Power, Bond

Suggested Citation

Walton, S. Ernie, The Judicial Philosophy of Chief Justice John Roberts: An Analysis Through the Eyes of International Law (July 7, 2015). 30 Emory Int'l L. Rev. 391 (2016). Available at SSRN: https://ssrn.com/abstract=2627792 or http://dx.doi.org/10.2139/ssrn.2627792

S. Ernie Walton (Contact Author)

Regent University - Regent Law Center for Global Justice, Human Rights, and the Rule of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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