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The End Of Civilization As We Knew It, Part Nine.
“Nations have become ever more interdependent. This is undeniable, and no amount of localist or nationalist preaching will alter it.” – Stephen Breyer, US Supreme Court Justice, The Atlantic Magazine, October 2018
Today, we focus in our reflections on the evolution of global law, with specific attention to the US Supreme Court in this regard, and its enormous impact on civilization, as we knew it, and as it will become, one way or another.
Extraordinary is an understatement for the political and social convergence of issues and events that occurred last week in the US related to the senate confirmation hearings for the US Supreme Court.
As we wrote a week ago: “Numerous issues are at critical junctures that will play out further in unknown ways as we write.” And as we write today, Sunday, September 30, those words remain true, and amplified.
In many other nations, the current events related to the confirmation process for the US Supreme Court are seen as newsworthy, but most of the world does not see any of this as front-page news.
The word “world” in the previous sentence is the key word.
The US Supreme Court is an institution that has not only national, but global impact in critical ways. But the issue overall of the Court and the world is generally overlooked by most people, in the US and worldwide.
It is a role in the evolution of global governance that cannot be overemphasized.
Three years ago, this month, the subject of one our posts was “The Court and the World”, the new book by US Supreme Court Justice Stephen Breyer.
As much as the world looked so much different then, in terms of what seemed possible or impossible—as we pointed out in our first piece in this reflection, the gathering storm had already broken out, the unravelling was already well underway. But Breyer’s book was written before the full impact as it would play out had happened.
What an irony then, as the gales occur around who will or will not join him on the Court, that we hear again, after the end of civilization as we knew it, at this moment, from Breyer, on the Court and the world.
His current piece in the October issue of The Atlantic, “America’s Courts Can’t Ignore the World”, is taken in part from his book and a lecture since. We again become an ongoing echo of ourselves in the need to read exclamations. This needs to be read. And the usual reminder, this has nothing to do with agreeing with everything he writes or every decision as a justice he has made. In the main though, his observations on the Court and the world are intellectually and morally on the mark, extremely well-written, and he cannot be praised too much for simply putting the focus on the issue.
It’s an update with the context of what has occurred in the US and globally in the past three years. It’s a reminder that civilization on a global scale is in process for better or worse quite apart from the explosiveness of our times in some ways. A reminder that is balancing, disquieting and challenging all at once. The rest is up to all of us.
The article follows, as does the excerpt from our post three years ago.
Stephen Breyer, The Atlantic, October 2018
The laws of other countries have a bearing on America’s own, writes Stephen Breyer—and the highest court in the land needs to take heed.
“It is often said that the world is becoming more international in nature. What does this mean for those of us who live in such a world? When I hear words such as globalization, interdependence, and multinational, I sometimes feel like Stendhal’s hero Fabrice del Dongo at the beginning of The Charterhouse of Parma. He is a soldier at the Battle of Waterloo. He is lost in the fog of war. He hears bullets whizzing past. He sees Napoleon on his horse, charging back and forth. As he watches, he thinks to himself, I know something important is happening here—I wish I knew what it was.
It is hard not to have this reaction to the rhetoric of globalization. Two general tendencies are at work in many fields of human endeavor, including politics, government, and law. On the one hand, there are the forces of globalism, internationalism, and interdependence among nations. On the other hand, there are the forces of localism pulling us toward our communal, even tribal, roots. This distinction is familiar enough, but in most discussions these forces are seen as antithetical to each other. I wish to suggest that such a view is wrong—that the global and the local both refer to well-functioning features of the modern world. In law, as in many other realms, they do not necessarily present us with either/or choices. We often can take account of both, and we often should. I recognize that in politics these values are often pitted against each other, as in the Brexit campaign in Britain and in the 2016 presidential election in the United States. But the Brexit change may come slowly if it comes at all, and is more difficult to make than one might think. Sometimes I think of political leaders as boat passengers who climb onto the deck and, to avoid seasickness, pretend to steer the heaving vessel.
My own direct judicial experience is limited to local American courts. The Supreme Court of the United States is a local court. We justices deal almost exclusively with laws enacted by Congress and with the Constitution of the United States. Yet local law is increasingly affected by what happens abroad. Lawyers, legislators, and judges to an ever greater extent must look beyond their own shores to answer questions of local law. At the same time, it is important for people who are not lawyers or judges to understand the process through which transnational facts affect national law as interpreted by local courts.
Law is not a science. It is, at least in part, a humane discipline. It is not architecture or music, but like them, it embodies an ancient and universal human need, expressed in the biblical words “Justice, justice shall you pursue.” Law helps organize human beings in communities that allow them to obtain the benefits of living together productively and in peace. It is not surprising, therefore, that law faces the same factual circumstances as other realms and disciplines—namely, a world in which the international affects our daily lives.
How should law recognize the reality of globalization while also maintaining the importance of local ties? My experience as a judge has changed in this respect over the past two decades. International law, the domestic laws and customs of other nations, and the decisions of foreign courts have become part of today’s American judicial experience. Twenty years ago, out of the 70 or so cases that the Supreme Court fully considers each year, perhaps 3 or 4 percent required us to look beyond our own shores in order to understand the legal problems involved and find the appropriate solution. Today that figure is closer to 20 percent, and is sometimes greater.
Only some of those cases concern the application of treaties or other forms of international law. More of them concern domestic statutes, administrative regulations, or interpretations of the U.S. Constitution. When I speak to an American audience about the need to be aware of foreign law and events, a member of the audience will typically ask, “But isn’t the Constitution an American document? Doesn’t it protect American values?” I answer that the circumstances giving rise to more and more cases include foreign circumstances. Indeed, the best way to preserve American values (which are largely the same as contemporary European values) may well be to take account of what happens abroad.
Consider a problem that now concerns courts in many countries: the conflict between national-security needs and basic civil liberties. The U.S. Constitution delegates to the president and to Congress the power to protect national security, particularly during times of war or emergency. Judges have the authority to determine whether a statute or presidential action violates the Constitution’s protections of individual human rights—for example, the right of free expression and the right not to suffer arbitrary imprisonment. What happens during wartime or a time of emergency, when the requirements of security and civil liberties may conflict?
Justice Robert Jackson once said that a judge trying to determine what the Founders thought about this matter was like Joseph trying to interpret the dreams of Pharaoh. I think it is more accurate to say that, until fairly recently, American courts followed something like Cicero’s dictum on the subject: Silent enim leges inter arma, which I used to translate as “When the cannons roar, the laws fall silent,” until someone pointed out that the Romans did not have cannons. But the point is clear. History tells of many instances when, during wartime, the executive or legislative branch took actions suppressing civil liberties that on later examination were deemed to have unnecessarily and unreasonably deprived American citizens of their constitutional rights. At the beginning of the republic, during hostilities with France, Congress enacted the speech-suppressing Alien and Sedition Acts, which the courts left untouched. During the Civil War, President Abraham Lincoln suspended the writ of habeas corpus and imprisoned thousands of civilians, many of whom were not in the service of the South. It was a terrible war; we can understand his point of view. But we can also understand its opposite. At the time, Secretary of State William Seward told the British ambassador, “I can touch a bell on my right hand and order the imprisonment of a citizen of Ohio; I can touch a bell again and order the imprisonment of a citizen of New York; and no power on earth, except that of the President, can release them. Can the Queen of England do so much?”
We also know about the widespread suppression of civil liberties, particularly free speech, that took place during World War I. During World War II, the Supreme Court, in Korematsu v. United States, refused to set aside the government’s action removing more than 70,000 American citizens of Japanese origin from their homes and interning them in camps. History shows us that officials knew at the time that this action was unnecessary. Why did the Supreme Court uphold it? The case has been much (and in my view properly) criticized. Justice Felix Frankfurter’s diaries report that the great liberal justice Hugo Black began the Court’s private conference on a related case by saying, essentially, “Somebody must run this war. It is either Roosevelt or us. And we cannot.” The Court voted 6–3 to uphold the internment. To read the history of this period is to understand Attorney General Francis Biddle’s perhaps exaggerated statement that “the Constitution has not greatly bothered any wartime President.” Is that an attorney general speaking, or is it Cicero?
The Court’s attitude began to change, however, during the Korean War. President Harry Truman seized America’s steel mills to avoid a strike and keep munitions flowing overseas to supply America’s armed forces. The Court held that the president lacked the power to do so on his own, without Congress—even in wartime. Why the change? Reading the case, I came to believe that the majority of the Court thought that President Franklin D. Roosevelt had gone too far in expanding and exercising presidential power during World War II. And it was easier to write an anti-Roosevelt opinion once Roosevelt was no longer alive, when the case involved a far less popular president. Regardless, the Court in effect wrote that there comes a point when a president has gone too far.
Four cases arising out of the imprisonment at Guantánamo Bay of alleged enemy combatants seized in Afghanistan and elsewhere will bring us up to date. The enemy combatants, not the most popular people in the United States, sued President George W. Bush and Secretary of Defense Donald Rumsfeld, and they won. Suppose, for example, that a detainee claimed he was not an enemy combatant but an innocent farmer, and the government replied that he carried a bazooka, and the detainee countered that peaceful farmers in Afghanistan needed bazookas. Who would decide the dispute, and how? We held that the Defense Department must provide the detainee with a hearing that embodies basic elements of fair procedure. And when Congress subsequently enacted a statute that in effect suspended the writ of habeas corpus, thereby prohibiting detainees at Guantánamo from going to court, we held that the suspension violated the Constitution. The most significant phrase in the Court’s Guantánamo opinions is one Justice Sandra Day O’Connor wrote in an opinion that I joined. She said, “A state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.” That is a fine phrase, but it leads the listener almost immediately to wonder, “Well then, what kind of check is it?”
With this question, you can understand why our opinions did not meet with widespread approval. Some people thought that we had interfered too much with the exercise of judgment by the president and Congress. In reply, I might quote Lord Atkin, a British judge, who wrote in the middle of World War II, “Amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.” More directly, I would say that a doctrine of noninterference points the way back, if not to Cicero, at least to Korematsu.
Others thought that we should have gone further and laid down more comprehensive legal rules for dealing with enemy combatants in times of national emergency. But we do not know what those legal rules ought to be. And it’s true, as Justice Jackson long ago pointed out, that the Constitution is not a “suicide pact.” As judges, we know too little about the nature of an emergency, a war, or a security need that might require diminished protection of civil liberties. Having abandoned Cicero and recognized, despite the inherent limitations of the judicial office, the need to protect liberties, how are we to obtain the necessary knowledge about national-security matters—and about what limitations are in fact required?
This is a question that concerns judges in many parts of the world. European nations also have a constitution or similar documents that protect human liberties. They too suffer from terrorism. And because neither terrorism nor human rights nor judicial responsibility is a purely American matter, part of the answer must lie in becoming more familiar with what is happening elsewhere in the world.
Not long ago, members of the Supreme Court met with British judges. We discussed these matters at some length. Britain has devised a system for extreme cases—say, when a suspected terrorist is arrested and detained on the basis of classified information. The arrested person is given two lawyers. The first meets with the client but is forbidden to see classified matters pertaining to national security; the second doesn’t meet with the client but can see the classified information. This second lawyer can pass on only the gist of that information to the first lawyer, and hence to the client.
Israel, for its part, has devised a system for when authorities believe that a suspect will tell his lawyer something that sounds anodyne but is in fact of consequence—when he will say “Tell my mother I’m fine,” but really mean “Tell my associates to blow up the café.” The armed forces, wishing to detain that suspect without counsel, must explain to a judge why they should not give the detained person a lawyer; if the judge agrees, he or she permits temporary detention. But after a brief time, the government must appear before the judge again and explain why detention is still necessary; if it is approved once more, then the government must return again after a briefer time, and so forth. On each occasion, the judge demands a greater burden of proof.
I am not saying that either of these approaches is perfect or even desirable. I amsaying that no one would want judges to try to find a proper equilibrium between respecting urgent security needs and protecting civil liberties while remaining ignorant of the key elements of the circumstances. If judges are to do their job, they must have the tools. The practices of judges in Britain and Israel may or may not assist us in this extremely difficult predicament, but regardless it helps to understand, in today’s world of international terrorism, what is occurring beyond our own shores.
Let’s look at commerce. A vitamin purchaser in Ecuador wishes to bring an antitrust lawsuit in New York against a Switzerland-based vitamin manufacturer and distributor. The purchaser claims that the manufacturer is a member of an international cartel, which includes an American company, that colluded to raise the prices of its manufactured vitamins. Why bring this lawsuit under American law in New York? Perhaps because American antitrust law provides triple damages.
But does American law apply? To answer this question—a question of local law—in F. Hoffmann–La Roche Ltd. v. Empagran S.A. (2004), the Court had to interpret a vague American statute. We also had to consider whether allowing the suit would unreasonably interfere with the work of the European Union’s own anticartel authority. We received briefs on the point, filed by the EU, several European nations, and lawyers from various countries. We considered a raft of detailed agreements between American and European antitrust authorities that established working arrangements designed to ensure coordination. The working arrangements were far more detailed and jointly administered than those that existed many years ago, when I worked for the antitrust division at the Department of Justice, which involved little more than occasionally meeting our European counterparts for lunch.
Or consider the following case: Australian buyers purchase shares in an Australian company on the Australian stock exchange in Australia. Can they bring a lawsuit under American securities law in America for fraud, based on the Australian company’s alleged overpayment for its purchase of an American company that did business in Florida? We held in Morrison v. National Australia Bank (2010) that they could not. But the result is not the point. The point is that we received briefs from securities-law enforcers, lawyers, and financial managers from around the world. Many told us that to allow the suit would seriously interfere with the ongoing work of securities-law enforcers in Australia, the EU, and other nations. In my view, in order to interpret this local law, we—judges on a local court—had to assess the related interests of other nations. And we saw it not simply as involving “comity”—a traditional legal term that warns against cross-border interference—but as involving efforts to harmonize similar approaches to securities regulation employed by many different nations.
Reading through opinions in older cases written by excellent judges, I became convinced that those judges would have reached the opposite conclusion in their own day: They would have applied only American law. What has changed is the nature of commerce, finance, anti-fraud enforcement, and cooperation among enforcers.
A recent copyright case—Kirtsaeng v. John Wiley & Sons, Inc. (2013)—illustrates the scope of relevant commercial change. A student from Thailand, studying in New York at Cornell, realized that he could buy in Bangkok the English-language textbooks he needed, and at lower prices. He wrote to his family and friends, asking them to send him a few. They sent more than a few, and he sold them to his fellow students. The American publisher became unhappy, brought a lawsuit in New York, and claimed a copyright violation. The technical legal question was whether the “first sale” doctrine permitted the student to resell the books, originally bought in Thailand, without the publisher’s permission. The answer, unfortunately, lay in a few statutory words of supreme ambiguity.
We received briefs from lawyers representing many nations and many publishers, and from other parties around the world. I did not understand why we received such a huge stack of amicus curiae briefs until I read one brief that explained it. Today, copyright is no longer just a matter of books, music, and film. Like jazz, it is everywhere. Automobiles contain copyrighted software, and retailers sell goods with copyrighted labels. The Supreme Court’s answer to this question, we were told in the briefs from abroad, would affect more than $2 trillion worth of commerce. (Even with inflation, that is a lot of money.) We had to understand the commercial implications of practices engaged in by those whom copyright seeks to protect. We needed those briefs.
We eventually decided the case in favor of the student, but it illustrates the size of the impact on international commerce of a decision arising in local law. I want to show the need, implicit in the modern world, for local judges to think about international considerations when they decide questions, including questions of local law.
In 1978, dolly filártiga, a citizen of Paraguay, discovered that a former Paraguayan policeman who had tortured her brother to death in their native country was living in New York City. She also discovered the Alien Tort Statute, which was enacted in 1789. It declared that federal courts “shall have … jurisdiction of any civil action [brought] by an alien for a tort”—that is, a civil wrong—“committed in violation of the law of nations.” Filártiga brought a civil action, she argued that torture was a “violation of the law of nations,” and she sought damages. She won. She did not collect money from the former policeman, who had returned to Paraguay. But, she later wrote, “I came to this country in 1978 hoping simply to look a killer in the eye. With the help of American law, I got so much more.”
Subsequently, victims began to invoke the statute more frequently. But its interpretation was far from simple. Congress had enacted the statute in the 18th century, most likely to help victims of piracy. The basic international legal rule then was something like If you can catch a pirate, you can hang him wherever he is found, but first shake out his pockets and pay any money you find to his victims. Courts must decide who today’s pirates are. What violations of the “law of nations”—torture, genocide, apartheid, slavery, environmental depredation, assassination—fall within the statute’s scope?
And what if the nation in which the civil wrong took place objects to American judges’ deciding such matters? When victims of South African apartheid sued multinational corporations that had done business in South Africa, the postapartheid government filed a brief stating that it did not want American judges to decide this kind of case. South Africa had created its own process—the Truth and Reconciliation Commission—to help overcome the effects of apartheid. It did not want American judges developing other methods for compensating victims. So, when interpreting the Alien Tort Statute, to what extent should American courts follow the views of South Africa?
Moreover, the power of example means that if America can administer such a statute, so can other nations. Is it desirable for national courts to use this kind of statute to judge and to penalize the conduct of citizens of other nations that takes place in those other nations? To what extent does doing so risk disparate interpretations, some of which may involve serious interference by one nation in the affairs of another? These are old questions, but there is no Supreme Court of the World to decide them. Nor do many people believe that nation-states will soon cease to be independent and sovereign entities, or that we’ll have an international court ready to litigate a dispute like Dolly Filártiga’s anytime soon. Consequently, there is an ever-growing need for local courts, acting independently, to arrive at answers that will find widespread acceptance.
The Alien Tort Statute serves a useful purpose in helping bring justice to victims of torture or genocide. But if local judges are to interpret the statute successfully, it might help to ask a form of Kant’s “universal question,” about whether a maxim holds up as a universal law: What will happen if judges in other countries—facing, say, allegations of misconduct by Americans—adopt the same interpretation that our judges now find applicable here? Judges have to ask whether, and how, the interpretations they adopt would work under similar circumstances in other nations. That is a challenging prospect, but one that falls within the realm of possibility.
Let me mention a final set of examples that even more clearly involve international, or transnational, law. The Supreme Court interprets treaties. When we do so, we all agree that the decisions of foreign courts interpreting the same treaty provision are directly relevant. But the nature of treaties has changed. In recent years, we have had to interpret a Hague Convention that governs the abduction of children. Among the amicus curiae briefs we read were some filed by NGOs that sought to obtain adequate protection for abducted children. They argued for a stricter interpretation of some of the treaty’s language. We read other briefs filed by women’s groups anxious to protect women from spousal abuse that can lead to child abduction. They argued for a broader interpretation of that language.
The unusual feature of the case is that, in the United States, domestic-relations cases are normally heard by specialized state courts, not by federal courts. The job of a domestic-relations judge is probably the most difficult, and one of the most important, in the judicial system. Yet we members of the Supreme Court know virtually nothing about it. So why us? Why did we have to decide this difficult domestic-relations matter? Because it was embodied in a treaty, and interpreting treaties is our job. The need for a treaty like this is clear: Marriages between couples from different nations will only become more common. Yet our lack of expertise means a high possibility of error. Those groups interested in the subject will have to monitor court decisions with care and, in light of those decisions, stand ready to modify treaties when that seems necessary.
Nations are signing an increasing number of treaties, not simply bilateral but multinational ones, which create bureaucratic structures that administer treaty provisions, promulgate rules, and adjudicate disputes. Think not just of the United Nations and the European Union, but also of the World Trade Organization and the International Civil Aviation Organization. Many of the rules and decisions of those bureaucracies, as a matter of law or as a matter of practice, directly bind businesses or individual citizens from many different member nations. The Italian jurist Sabino Cassese, a great authority on the subject, estimates that there are more than 2,000 such organizations in the world. My own research, using State Department lists, suggests that the United States belongs to more than 800 of them. The World Trade Organization is relatively well known, but there is also the Commission for the Conservation of Southern Bluefin Tuna and the International Olive Council. And what about the organization that affects people far more than most others, icann—a nonprofit headquartered in Los Angeles that sets the rules for internet domains? Why, or how, do its rules bind individuals and nations?
Sometimes a national legislature approving the underlying treaty may also provide that the organization’s rules will take effect as national legislation. Sometimes the legislature will transform an individual rule into a statute. Sometimes an organization’s rule may interact with complex preexisting national statutes in a way that makes it binding. Sometimes the practical effect of a rule violation can itself require adherence to that rule. But in many other instances, when and how such rules are binding is unclear.
Many different forms of agreements besides treaties enable nations to work together to regulate commerce, finance, trade, health, safety, the environment, and security. These forms include meetings and communications among national regulatory administrators; or, as in the antitrust world, detailed enforcement agreements among national staffs; or, as in the case of the International Organization for Standardization, the development of voluntary standards for just about everything, which governmental authorities can reference in regulations or adopt; or, as in many international trade agreements, promises through which nations recognize and accept one another’s regulatory standards; or agreements entered into by an executive branch on its own authority; and so forth. Agreements and the like may be broad or narrow in scope. They may involve few nations or many nations, from the same or different parts of the world. The combinations and permutations are nearly endless.
These methods of attacking problems together will undoubtedly lead to legal disputes and then to court decisions. Constitutional courts in Germany and Italy have had to grapple with an important question: To what extent does a nation’s constitution grant its government the power to delegate legislative authority to an international body (for example, the European Union)? Each court considering the question has answered that the authority is broad, but not unlimited. Similarly, our American courts may have to decide how much legislative authority our Constitution permits the president and Congress to delegate to an international body. Unless that authority is broad, how are we to work with others to alleviate problems that affect more than one nation? But what are the limits on that authority? Article I of the U.S. Constitution says that “legislative powers” are “vested in a Congress,” not in the Commission for the Conservation of Southern Bluefin Tuna.
I do not have the answer to this question. I mention it to impart an appreciation of the significant legal questions, including numerous questions of local law, that have arisen or likely will arise in a world that needs international cooperation, and continues to value local customs, traditions, and community life.
The examples i have discussed suggest three general conclusions. First, it is often helpful to look at globalization and localism not as warring values but simply as common phenomena. They are realities or conditions that appear together simultaneously and shape the world in which we live. In recent years, the international has become more important, as nations have become ever more interdependent. As an empirical matter, all of this is undeniable, and no amount of localist or nationalist preaching will alter it.
Recognizing the compatibility of the local and the global, and their everyday coexistence, can sometimes lower the temperature of what might otherwise seem a political argument. Some years ago I participated in a seminar with a member of Congress who ardently criticized the reference, by certain members of the Supreme Court, to cases decided by courts of other countries. “I suppose your criticisms are aimed at me,” I said. “Exactly,” he replied. “Well, let me explain,” I said. “In the last several decades, more and more nations throughout the world have adopted documents that increasingly resemble our own Constitution, and protect democracy and human rights. More and more, they look to independent judges to apply those documents. And more and more, they face somewhat similar problems. So if I have a legal problem similar to a problem that a person like me with a job like mine has already faced and decided, why shouldn’t I read what he said? I don’t have to agree. It does not bind me. I don’t have to follow it.”
I thought that was a pretty good answer—until he said, “Fine. Read it. Just do not refer to it in an opinion.” Foolishly, perhaps, I decided to continue: “But what about newly established courts in new democracies? They often refer to our cases. Our references to their cases may reinforce political tendencies in their countries that support the protection of human rights when doing so is unpopular.” “Fine,” he replied. “Write them a letter. Just don’t refer to their cases in your opinions.”
That congressman’s views represent a long-standing tradition in America. James Madison himself, while recognizing that the U.S. Constitution draws its inspiration from both the French and Scottish enlightenments, wrote that the Constitution is a charter “of power granted by liberty,” not a charter “of liberty … granted by power,” as was prevalent in 18th-century Europe. He meant that, in America, free people are the source of governmental power; what authority they do not grant to the central government remains with them. In royal Europe, however, the king was the source of power, and what he did not grant to the people, he retained. For this and other reasons, Americans seek to keep control of the government through elections, including elections of judges in many places. Federal judges, though unelected, are appointed and confirmed by elected officials: the president and the members of the Senate. Hence, “the people” retain at least a degree of democratic control. But we have no control over foreign judges whatsoever. If we give too much authority to international bodies or foreign officials, including judges, how will we retain our American values?
The best response to this question is a form of what lawyers call “confession and avoidance.” Explain the nature of some international problems and show with examples how they affect cases that appear directly in our Court. Then ask the critic, what would you have us do? How can we responsibly and properly resolve the legal questions before us without knowledge of what is happening beyond our shores? We cannot reject the facts, and we will not reject the need to solve problems under law. So what is the alternative?
Second, the legal examples suggest that there are many different ways to deal with international challenges and circumstances. We can take as a given the values that we will not sacrifice when trying to meet these challenges, such as democracy, human rights, and equality under the law. (Some of these values are now under siege in various Western countries, but that is a political matter.) We also can take as a given the circumstances themselves. If the interdependence of nations changes, it will change slowly over time. The challenges that in part give rise to this interdependence—economic fragility, the movement of peoples, environmental harms, and concerns about health, safety, terrorism, and the like—will also change slowly over time. There is an obvious need for cooperative approaches, but there is less agreement about just how cooperative approaches should work. The European Union certainly represents one possible, and fruitful, approach. But the United States, which faces many of the same issues that European countries do, is not a member of the EU.
There is no single answer. Local judges necessarily play a role. In appropriate cases, they look abroad to better understand the legal problem. They can use legal instruments such as comity. They can seek to harmonize enforcement approaches. They can ask Kant’s universality question. None of these “cosmopolitan” methods ignores local law. To the contrary, each begins with local law as a base. None of these approaches is guaranteed to work; but what, again, is the alternative? Even if the United States does not participate, other nations will cooperate with one another. In doing so, they will leave us with the consequences, while depriving us of the opportunity to influence their decisions. The local and the global are not alternatives. They are realities.
Maintaining a rule of law is more difficult than many believe. The effort is ancient, stretching back to the Magna Carta, and still earlier.
Judges, who are mostly technical people, help weave a fabric of practices, rules, regulations, customs, agreements, and working arrangements—some local and some regional, some formal and some informal. The fabric, like that of Penelope, sometimes comes undone during the night; but we must simply continue to work on the problems before us. I have always liked FDR’s advice: “It is common sense to take a method and try it: If it fails, admit it frankly and try another. But above all, try something.”
Third, and finally, my legal examples suggest the importance of looking to approaches and solutions that themselves embody a rule of law. To achieve and maintain a rule of law is more difficult than many people believe. The effort is ancient, stretching back to King John and the Magna Carta, and still earlier. And the effort does not always succeed. I often describe to judges from other countries how, in the 1830s, a president of the United States, Andrew Jackson, when faced with a Supreme Court decision holding that northern Georgia (where gold had been found) belonged to the Cherokee Nation, is said to have remarked, “John Marshall [the chief justice] has made his decision, now let him enforce it.” Jackson sent troops to Georgia, but not to enforce the law. Instead they evicted the tribe members, sending them along the Trail of Tears to Oklahoma, where their descendants live to this day.
Not for more than a century, a period that included the Civil War and decades of racial segregation, would the Supreme Court hold, in Brown v. Board of Education, in 1954, that racial segregation violated the Constitution. Yet the country did not abolish segregation the next year or the year after that. When, in 1957, a judge in Little Rock, Arkansas, ordered Central High School desegregated, the local White Citizens’ Council, supported by the governor, rallied in front of the school, letting no black child enter. It took more than judicial decisions to end segregation. It took a president’s decision to send 1,000 paratroopers to Arkansas. It took Martin Luther King Jr., and the Freedom Riders, and the words and deeds of countless Americans who were not lawyers or judges. Today the public has come to accept the rule of law. When the Court decided Bush v. Gore, a case that was unpopular among many, and was (as I wrote in dissent) wrongly decided, the nation accepted the decision without rioting in the streets. That is a major asset for a nation with a highly diverse population of 320 million citizens.
We do not have to convince judges or lawyers that maintaining the rule of law is necessary—they are already convinced. Instead we must convince ordinary citizens, those who are not lawyers or judges, that they sometimes must accept decisions that affect them adversely, and that may well be wrong. If they are willing to do so, the rule of law has a chance. And as soon as one considers the alternatives, the need to work within the rule of law is obvious. The rule of law is the opposite of the arbitrary, which, as the dictionary specifies, includes the unreasonable, the capricious, the authoritarian, the despotic, and the tyrannical. Turn on the television and look at what happens in nations that use other means to resolve their citizens’ differences.
For my generation, the need for law in its many forms was perhaps best described by Albert Camus in The Plague. He writes of a disease that strikes Oran, Algeria, which is his parable for the Nazis who occupied France and for the evil that inhabits some part of every man and woman. He writes of the behavior of those who lived there, some good, some bad. He writes of the doctors who help others without relying upon a moral theory—who simply act. At the end of the book, Camus writes that:
“the germ of the plague never dies nor does it ever disappear. It waits patiently in our bedrooms, our cellars, our suitcases, our handkerchiefs, our file cabinets. And one day, perhaps, to the misfortune or for the education of men, the plague germ will reemerge, reawaken the rats, and send them forth to die in a once-happy city.”
The struggle against that germ continues. And the rule of law is one weapon that civilization has used to fight it. The rule of law is the keystone of the effort to build a civilized, humane, and just society. At a time when facing facts, understanding the local and global challenges that they offer, and working to meet those challenges cooperatively is particularly urgent, we must continue to construct such a society—a society of laws—together.”
Excerpt from World Campaign post, September 15, 2015:
The new book by Stephen Breyer, US Supreme Court associate justice, “The Court and the World”, is an historic work.
Breyer has been making the media rounds–the new Late Show with Stephen Colbert, Sunday Morning on CBS, and on and on. Not the moves for a Supreme Court justice historically, but the new world is the new world–and he’s navigating it brilliantly.
With a purpose. The most important court on the planet needs to engage the proliferation of law throughout the world in order to preserve the best of America and to be part of the real world as it is–one interdependent planet as a fact. Global governance is already happening, even while the ancient nationalist impulse and the new internationalist imperative finish their long twilight final conflict in various places and various ways.
The new world is here. It’s one world, already tied together inextricably in every way as never before. Only one way forward. But if the values of human rights, democracy and rule of law are to thrive, the most recent historical landing place of these values in a globally influential historical sense and their re-creation in the ongoing experiment, the US, still the strongest nation on earth (for a while anyway), it must engage in every way with the new world. And Breyer approaches it through the law–the convergence of US law at the apex in the Supreme Court, and the law throughout the world, in courts, treaties, organizations and agencies which are now in fact functioning together in many ways which will in no small part determine the future of global governance. A small matter that will determine every aspect of our lives.
Good time to pay attention.
Next Sunday’s excellent New York Times Book Review cover story on the subject, “Stephen Breyer’s ‘The Court and The World’”, is provided early below:
SUNDAY BOOK REVIEW
John Fabian Witt
“In all the fanfare surrounding the Supreme Court’s end-of-term rulings this past June, a little-noticed passage in an opinion by Justice Stephen Breyer quietly revisited a debate that has roiled American law for nearly two decades. Dissenting on the final day of the term from a decision to uphold Oklahoma’s new lethal injection protocol, Breyer (joined by Justice Ruth Bader Ginsburg) observed that 137 countries ‘ a full 70 percent of member states in the United Nations ‘ have abolished the death penalty either formally or in practice. Breyer noted further that in 2013 the United States was one of only 22 countries in the world to carry out any executions at all.
To the untutored eye, such observations may seem inoffensive enough, albeit on a grave subject. But by citing the experience of the rest of the world, Breyer raised a question that is not about the death penalty at all but is at the heart of a fierce controversy over the future of American democracy. Does foreign law have a place in interpreting the American Constitution?
Four of Breyer’s eight fellow justices say no. Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito have denounced references to foreign and international law as a threat to the country’s tradition of democratic self-governance. At least 18 Republican senators voting against the nomination of Justice Sonia Sotomayor to the court in 2009 cited concern that she would rely on foreign and international law. (In her Senate hearings, Sotomayor denied she would.) On the other side, Breyer and three of his colleagues ‘ Ginsburg as well as Associate Justices Anthony Kennedy and Elena Kagan ‘ have explicitly endorsed some version of the practice.
In his lucid new book, ‘The Court and the World,’ Breyer contends that events in the world have effectively resolved the foreign law controversy. Playing the judge as enlightened modern technocrat, he offers a reasoned elaboration of the mounting costs that judicial isolationism would entail in our increasingly interconnected world. Globalization, he argues, has made engagement with foreign law and international affairs simply unavoidable.
Breyer begins with the area of national security law and individual liberties. In a series of decisions over the past decade and a half, the Supreme Court has pushed back against the absolute power of the executive branch and Congress over detainees. The court has refused, as Justice Sandra Day O’Connor put it in 2004, to give the political branches a ‘blank
check.’ Breyer observes that involvement in international affairs ‘ a role for the court he sees as relatively new ‘ will require that judges know something about international security problems. Moreover, he adds, why not learn from the efforts of others as we try to solve the same basic problems? After all, reconciling security and civil liberties is a problem that nearly every democratic society confronts.
New global challenges also require novel kinds of cooperation among judges in different legal systems. Take human rights cases, for example. When citizens of Nigeria sued Royal Dutch Shell in New York, complaining that the corporation aided and abetted human rights abuses by that country’s military and police, the court took up the question of whether allowing such actions to go forward in American courts would produce ‘unintended clashes’ between the laws of the United States and those of other countries. Heeding the objections of the United Kingdom and six other nations, the court concluded that the risks of undue interference were too great and dismissed the suit.
Cases arising out of international commerce illustrate similar coordination questions. When a publisher sued a citizen of Thailand named Supap Kirtsaeng for importing cheaper Thai copies of American textbooks for resale in the United States, the court was required to decide how to integrate American copyright law with that of foreign countries. (Kirtsaeng won.) When foreign investors sued an Australian bank for making allegedly fraudulent representations about the value of an American company it acquired, the court had to consider whether allowing such suits would inappropriately override Australia’s own laws about securities fraud. (The court concluded it would.) And when foreign businesses charged that price fixing by a worldwide vitamin cartel that had affected American markets also caused damages to them outside the United States, the court had to decide whether American antitrust law gave such businesses a remedy despite the existence of a body of competition law in the European Union and its member states. (The court decided that it didn’t.)
Breyer’s aim is not to assess whether these decisions were correct. His argument is a simpler yet more radical one. To decide such cases intelligently, he insists, judges need to understand and engage with foreign and international law. To do otherwise is to try to navigate the globe with a blindfold.
Breyer reports that in his nearly 20 years on the court, he has seen a greater and greater number of cases involving foreign questions. ‘That,’ he writes, ‘is my professional reality.’
A longer view would reveal that engagement with the world has been an institutional reality at the court for nearly all of its existence. The sudden salience of international questions on the court’s docket seems novel only to lawyers of a certain generation. In the decades that followed World War II, the Cold War and the power of American markets gave the rest of the world a distinctively limited role in American law. But in the first century and a half of the Republic, justices routinely took up questions of foreign and international law and international affairs. In cases on the laws of war at sea, for example, justices regularly ruled against American claims of authority to seize foreign vessels. During the Civil War, a dissenting wing of the court came within a single vote of declaring Lincoln’s war powers illegal. The dissenters’ opinion drew on international law developed largely by foreign sources. In the decades that followed, the court developed influential new theories of congressional power over immigration, Indian tribes and the territories by drawing analogies to international law and the practices of European powers.
Breyer is right, however, that 21st-century global engagements pose important new challenges. He is really interested in the coming era of global governance represented by bodies ranging from the World Trade Organization to the International Olive Council. Transnational organizations have already begun to produce regulations in areas as diverse as banking supervision, trucking and Internet domain name registration. As Greek voters discovered this summer, international organizations increasingly confront democracies (including the United States) with real limits on self-governance.
These limits are the core of today’s foreign law controversy. According to critics on the court and elsewhere, international rule making is government from afar: It threatens the very project of constitutional independence that the framers set in motion in 1787. Breyer, by contrast, sees the role of courts in a radically different light. In democracies, he says, courts are specialized problem solvers. Judicial isolationism, he rightly insists, will make it difficult for judges to address the kinds of problems we need them to solve in the ever smaller world of the 21st century.
Breyer’s fiercest critics will most likely be unmollified. And in at least one respect they are right: No accounting of the costs and benefits of global integration can by itself resolve the tensions between self-governance and interconnectedness. But democracy has never been a nativist straitjacket. Breyer’s book offers a powerful description of the price we would pay for allowing it to become one.
John Fabian Witt is a professor of law and history at Yale and the author, most recently, of ‘Lincoln’s Code: The Laws of War in – American History.’”
To be continued.
- Issue of the Week
- Message of the Day
- “J.K. Rowling, Hollywood, and the Holocaust,” The Walrus Magazine
- “Man raped during ‘scared straight’ prison tour says he was too ashamed to tell anyone”, Canadian Broadcasting Corporation (CBC) Radio
- “Tear gas, mass arrests as new ‘yellow vest’ protests hit Paris”, Agence France-Presse