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Judicial Deference To Executive Branch Treaty Interpretations: A Historical Perspective, David Sloss

Faculty Publications

In recent years, the Supreme Court has almost always deferred to executive branch views on treaty interpretation issues. Executive dominance was not always the norm, though. In the first fifty years of U.S. constitutional history, between 1789 and 1838, the Supreme Court decided nineteen cases in which the U.S. government was a party, at least one party raised a claim or defense on the basis of a treaty, and the Court decided the merits of that claim or defense. The U.S. government won only three of those nineteen cases. Two other cases were effectively split decisions. And the government lost …