Vol. 26 No. 5 (September 2016) pp. 91-95
THE COURT AND THE WORLD: AMERICAN LAW AND THE NEW GLOBAL REALITIES by Stephen Breyer. New York: Alfred A. Knopff 2016. Cloth: $27.95. 382 pp. ISBN: 978-1-101-94619-0.
Reviewed by Mark Rush, Director of International Education and Stanley D. and Nikki Waxberg Professor of Politics and Law, Washington and Lee University. Email: firstname.lastname@example.org.
Associate Justice Breyer has written a thoughtful and important book about the role of the Supreme Court, the nature of 21st century politics and the impact of technology, terror and other developments on the scope of U.S. constitutionalism and law. This work is more than a continuation of the many debates Breyer had with Justice Antonin Scalia. In those exchanges, Scalia contended that foreign law had no place in the interpretation of the U.S. constitution or its application to statutes. By his lights, the question of incorporating foreign law was merely an extension of the interpretivism/noninterpretivism debate describe by John Hart Ely many years ago in DEMOCRACY AND DISTRUST. Breyer disagreed.
In THE COURT AND THE WORLD, Breyer makes his case not in response to Scalia and the interpretivism debate. Instead, he maintains, essentially, that the interpretivisim debate is no longer relevant. Whether we like it or not, the impact of U.S. law extends far beyond the United States. As well, foreign law and foreign affairs impact U.S. politics and lawmaking. As a result, when addressing constitutional challenges to laws or executive actions, the Supreme Court cannot pretend to do so inside of some sort of domestic constitutional “clean room” in which there are no foreign influences or consequences. Those influences and consequences are there. To pretend that they are not would be to stick one’s head in constitutional sand.
Breyer divides the book into four parts, each of which addresses a particular question (4-5):
Part I: “How can the Court effectively protect basic liberties in the face of security threats?”
Part II: “Should American statutes be understood to open the doors of American courts to foreign victims of human rights abuses?”
Part III: “How is the Court to interpret treaties that concern unfamiliar subjects, such as the domestic relations law of foreign countries, or competing international dispute-resolution systems, such as international arbitration tribunals, or international administrative regimes regulating, say, health, safety or the environment?”
Part IV: “How can American judges learn from other [nations’ judges]?”
In addressing these questions, Breyer approaches constitutional law as an organic subject. This is more than simply “living” constitutionalism. As he notes at the start of section II:
“We have seen how the effort to preserve individual liberties has led to a change in the Court’s approach to the law. I have suggested that this evolution owes as much to the changing nature of the world as to the predictable cycles of self-correction that one might expect to see in a system of constitutional government.” (p. 91. Emphasis added)
So, for Breyer, the challenges posed to judges by international politics take the same form as other challenges; such as the impact of advancements in medicine on the notion of when life begins, advancements in science on forensics and the notion of “reasonable doubt”, and advancements in technology on notions of privacy, free speech and security. The interpretation of rights must [*92] change in response to extra-constitutional events. Otherwise, life would begin only at birth or conception, DNA would play no role in conviction or exoneration and privacy would extend only as far as eavesdropping. To make informed decisions about these subjects, judges must seek to learn about them.
In this respect, then, Breyer moves far beyond his debates with Justice Scalia. THE COURT AND THE WORLD is more than a call for American judges to incorporate European or Canadian notions of rights into their interpretation of the Constitution. There are many factors that may influence a judge’s interpretation of constitutional text, and a judge’s experience with foreign law may be only one of them.
Instead, Breyer argues that judges MUST take account not only of the international or foreign factors that may influence U.S. government action but also of the fact that foreign affairs may require laws that infringe upon constitutional rights in ways that the Framers of the constitution may never have contemplated. In this respect, THE COURT AND THE WORLD is an intriguing review of constitutional interpretation and, more broadly, the scope and definition of constitutional rights. Western notions of rights and social contract theory tend to speak in terms of a dualism between the state and the citizen. Breyer’s discussion is grounded on the assertion—the reality—that there is a third factor at work here (the rest of the world) and judges, legislators and citizens must accept that its existence requires a reexamination and readjustment of our approach to constitutional interpretation.
In Part I, Breyer moves us through the core of a Constitutional Law casebook’s sections dealing with executive power in general and emergency power in particular. This chapter is intriguing in several ways. First, he addresses how and whether courts should address questions dealing with foreign affairs, national security and emergencies. This is a delicate matter because he acknowledges that judges will, inevitably, be somewhat uninformed (particularly with regard to security issues) because they may not have access to confidential or classified information which, if publicized, could jeopardize foreign policy or lives.
He notes that the Court deferred to executive authority (and restrictions of rights) in cases such as U.S. V. CURTISS-WRIGHT, KOREMATSU V. U.S. and EX PARTE QUIRIN. In YOUNGSTOWN V. SAWYER, however, the Court asserted that it would not simply defer to presidential assertions of emergency power. This was a key turning point in American constitutional development.
He dedicates a great deal of time to YOUNGSTOWN to demonstrate the complexity of the case and the issues surrounding executive assertions of emergency power. He then discusses the several cases dealing with the Guantanamo detainees to demonstrate that the president cannot simply be given a “blank check” when it comes to dealing with emergencies—domestic or international.
I pause here to offer a couple of quibbles. Breyer makes it clear that emergency situations create scenarios that the framers could not have anticipated. In this regard, we rely on Marshall’s assertion that we must rely on the courts to husband the development of constitutional law in MCCULLOCH V. MARYLAND.
“A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. … Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” (MCCULLOCH V. MARYLAND 17 U.S. 316, 407 (1819)).
On the one hand, Breyer does maintain that Courts should consider avoiding judgment if an [*93] emergency or foreign affairs case embodies what amounts to a political question. He said as much in his opinion in ZIVOTOVSKY V. CLINTON (the Jerusalem Passport Case). He acknowledged that the president’s decision, via signing statement, not to abide by Congress’s call for passports issued to Americans born in Jerusalem to include “Israel” in the birthplace, could have been grounded on concerns about stability in the Middle East that could not be addressed (and certainly could be threatened) by a judicial proceeding.
Drawing upon this case (where, in comparison to KOREMATSU, QUIRIN and the Guantanamo cases, the stakes were rather low), Breyer demonstrates that judges must acknowledge the limits of their knowledge and, in some cases, defer to the authority of Congress and the President to share in the interpretation of the Constitution. As Justice Jackson noted in Youngstown:
“A judge…may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves….A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.” (p. 62-63, citing YOUNGSTOWN at 634-35).
So, emergency and foreign affairs cases present us with uncharted territory. But—and here is the quibble—Breyer overlooks or, at least downplays the fact that in many of the cases he cites, the president acted with Congressional support. This was so in CURTISS-WRIGHT and KOREMATSU. Had Truman chosen to do so, he might have resolved the strike question in YOUNGSTOWN by relying on existing legislation. Thus, when turning to the Guantanamo cases, it is important to note that while the Court ultimately sought to control executive authority to restrict detainees’ access to the judicial system, the executive was acting under the authority of the USA Patriot Act.
Regardless of how one regards the many cases Breyer discusses in this section, it is clear that emergencies threaten (temporarily, we hope) to restrict individual liberties in ways that would not be tolerable under “normal” or nonemergency situations. This begs the question of what constitutes the scope and definition of an emergency situation (War? Hurricane Katrina? The 15 years since the 9/11 bombing?). Breyer does not pretend to answer. But, insofar as the question is vexing and presents serious constitutional questions, Breyer maintains that the Court should be as willing as the other branches to assert its constitutional role under emergency circumstances and, therefore, not defer to them as a matter of course.
In sections II and III, Breyer addresses the impact of treaty-making power on the courts. When dealing with the regulation of international commerce, the Alien Tort Statute and treaties dealing with child custody and labor arbitration, courts find themselves in territory that is unquestionably permeated by extra-constitutional considerations. As a result, it is impossible for a judge to resolve a case without taking into account the impact of a decision on the government’s ability to conduct foreign affairs and, possibly, the ability of other nations’ governments to conduct their own affairs.
With regard to the Alien Tort Statute, Breyer’s tour of the gruesome details of cases such as FILARTIGA V. PENA-IRALA demonstrates the impact of broadly written statutes that, by their wording, essentially expand access to U.S. Courts to include foreign nationals seeking redress for human rights violations. In discussing the ATS, Breyer emphasizes two themes. On the one hand, U.S. courts must manage their interpretation of the scope of rights created or protected by treaties and statutes. If they do not, they could be inundated. On the other hand, they must also seek to harmonize American interpretations of statutory application with those of other nations. If they do not, chaos will ensue.
In this regard, Breyer celebrates (or emphasizes) the role of courts not simply as protectors of rights but, instead, as caretakers of the law. In [*94] the same way that the Supreme Court will look to resolve conflicts that arise from differences among state or federal courts, so too must it look to harmonize U.S. interpretations of laws and treaties with those of other nations. Insofar as the Court (and all courts) now operates in a world characterized by the proliferation of international treaties dealing with human rights or domestic laws such as the ATS that have implications beyond American shores, judges cannot seek to address rights claims from strictly domestic perspectives. The results could be disastrous and have impacts on other nations.
Breyer notes, for example, that an overly-expansive interpretation of rights claims under the ATS by U.S. Courts could jeopardize the attempts by other nations to use truth and reconciliation commissions. Thus, South Africa filed briefs in SOSA V. ALVAREZ-MACHAIN asking to restrict the application of ATS to corporations so that its truth and reconciliation process would not be compromised.
On the one hand, Breyer asserts that the proliferation of human rights treaties and conventions after the Second World War demonstrated a “widespread public acceptance of the role of courts as guarantors of basic freedoms.” (p. 66) But, as his discussion of the ATS, commercial regulation and child custody demonstrates, the protection of freedoms may require their curtailment (or, at least, a rearticulation of their scope and definition) in order to promote harmony and consistency of rights definitions around the world.
In the end, Breyer demonstrates convincingly that “global realities” now force U.S. courts to reexamine how they will interpret (and revisit their interpretations of) constitutional rights and allocations of powers. National legal systems are inextricably connected to one another in a complex web of laws and treaties that continues to expand. While legislative and executive branches of governments are free to craft treaties, it will be up to courts to manage the interpretation and application of those laws and treaties and to harmonize those interpretations and applications when cases have impacts upon or are impacted by extra-national factors.
Breyer calls for judges to learn from one another and to seek information from briefs and other documents to enhance their capacity to understand the potential international implications of a given case. This is a common sense suggestion. But, one wonders how practical it is. After a fashion, judges all rely on information in briefs because no judge can take the time to become an expert in everything from product liability to forensics to medicine, to engineering, to local politics in Indonesia. As a result, Breyer’s call for more interchange among judges is, really a call for judges to be willing to rise above the predilections imposed by the canons of legal education.
This is not simply a call for more learned circumspection. Breyer maintains that a greater judicial understanding of the legal and practical realities of other nations’ and international legal issues will allow us “to preserve our basic American values” (p. 235). We cannot do this unless we have a better understanding of how those values compete and compare with other nations’ value that exist in the global legal web.
In sum, this is an important book that will elicit strong negative and positive responses. For some, it will be a realistic statement of the nature of 21st century constitutional interpretation. For others, it will be restatement of Breyer’s disagreements with Scalia. Regardless, THE COURT AND THE WORLD offers an in-depth statement of Breyer’s vision of the role of the Supreme Court in an increasingly complex constitutional environment.
Ely, John Hart. (1981). DEMOCRACY AND DISTRUST A THEORY OF JUDICIAL REVIEW. Cambridge, MA: Harvard University Press.
EX PARTE QUIRIN, 317 U.S. 1 (1942).
FILARTIGA V. PENA-IRALA, 620 F. 2d 876 (1980). [*95]
KOREMATSU V. UNITED STATES, 323 U.S. 214 (1944).
MCCULLOCH V. MARLYAND, 17 U.S. 316 (1819).
SOSA V. ALVAREZ-MACHAIN, 542 U.S. 692 (2004).
U.S. V. CURTISS-WRIGHT EXPORT CORP., 299 U.S. 304 (1936).
YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579 (1952).
ZIVOTOVSKY V. CLINTON, 566 U.S. __ (2012).
© Copyright 2016 by author, Mark Rush.