That’s the conclusion of Ingrid Wuerth, writing at Lawfare. And she singles out Chief Justice Roberts as one of the main skeptics of an argument that I made with Cass Sunstein in 2007. We argued that courts should defer to the executive branch on issues touching on foreign relations, just as they do under Chevron and related doctrines in (domestic) administrative law cases. Our argument was normative, based on the executive’s responsibilities and expertise, but we argued that it was consistent with the cases (a widespread view at the time). Wuerth notes that over the last decade the Court has discounted the executive’s views in numerous cases, including Kiobel, Morrison, Medellin, BG Group, and Zivitofsky, plus some early war-on-terror habeas cases.
All of this raises some interesting questions. One is whether the Court has in fact cut back on executive power or just hasn’t advanced it as much as the executive would like. A rule that the executive always wins is not the same as a rule of broad but not unlimited deference.
But assuming Wuerth is right, what’s the explanation? Some hypotheses:
1. The executive has lost prestige, thanks to its excesses against Al Qaeda, its failures in Afghanistan and Iraq, and perhaps even a perception that it has gone too far domestically.
2. The Court has gained confidence despite declining popularity, maybe because some aggressive decisions have not spurred pack-the-court style backlashes or because the executive and legislative branches are too divided to counter the Court.
3. The anti-executive tendency is the result of temporary partisan alignments. The Court was somewhat more liberal during the Bush administration and so perhaps uneasy with some of his policies; now right-wing justices are looking for ways to undermine Obama.
4. The justices share the public’s view that the U.S. should withdraw from many of its foreign commitments and turn inward. Weakening the executive is a step in that direction.
5. Originalism/formalism/textualism is in the air, and ( as scholars have long agreed) the modern system of executive power does not draw much support from the text of the Constitution or founding-era understandings.