With Zivotofsky v. Kerry being argued today — a case allegedly freighted with great foreign policy consequences — it is useful to consider what foreign countries are actually saying about it. Peter Spiro has noted how little amicus support the government’s position has, particularly the absence of briefs from former diplomats. (I co-authored an amicus brief supporting the petitioner.)
What is even more surprising is the absence of amicus briefs by foreign governments. Foreign countries regularly file amicus briefs in cases in which they have a direct interest, or even a more general interest. Such briefs have featured in several important recent foreign affairs (Medellin v. Texas) and constitutional cases (like Roper v. Simmons).
If the government’s framing of the issue is correct, one would think Zivotofsky would occasion such a brief. It ostensibly involves authority over recognizing sovereigns, with an underlying dispute about sovereignty over Jerusalem. If thus understood as being in part about sovereignty (which it should not be), one would think interested parties – the Palestinian National Authority, the Hashemite Kingdom, the Organization of Islamic States, or the Arab League, individually or collectively, would file an amicus brief insisting on their position. Indeed, the Executive’s assertions of negative foreign policy consequences seem fanciful given — ginned up to resist legitimate legislation that he (sort of) disagrees with — given that no foreign entity could be found to write an amicus brief.
Perhaps foreign countries understand that this is not actually a case about the international legal status of Jerusalem, but rather about technical internal arrangements of the U.S. government. Also, they may wish to not overstate the issue’s importance ex ante, in case Zivotofsky wins. In such an event, Arab states are unlikely to cry foul, because they would have to acknowledge that a major power recognizes Jerusalem as part of Israel. Rather, they would prefer to say the ruling means nothing about the status of Jerusalem, and will continue to hold up the Executive’s formal position as being that of the U.S. That way they can continue to claim that even the U.S. does not recognize Western Jerusalem as part of Israel.
To be sure, the Court should not read too much into amicus briefs, let alone their absence. But to the extent it has noted the filings of interested foreign governments in the past, it is worthwhile noting their absence here.