Justice Stephen Breyer: The Court and the World

Justice Stephen Breyer: The Court and the World

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[Robert C. Post] Good afternoon and welcome.
As the Dean, I am often called upon, as has been observed many times, to offer introductions,
and that is a duty that our lecturer for today once aptly termed the “blessing function.”
And today, it is really my pleasure to bless this occasion when Justice Stephen Breyer
comes back to the Yale Law School. And I want to especially thank you, Justice Breyer, for
being with us on this difficult occasion, with the loss of your longtime colleague Justice
Antonin Scalia. Justice Scalia was, as Justice Breyer so eloquently wrote a few days ago
in a tribute to his friend, “a legal titan,” who “used his great energy, fine mind, and
stylistic genius to further the rule of law as he saw it.” In spirited prose, Justice
Scalia insisted upon the separation of law and politics. But, paradoxically, he was actually
a genius at influencing popular attitudes toward constitutional law. He was in fact
unmatched in giving jurisprudential voice to social movements, and he relished that
role. Though Justice Breyer is, alongside of Justice
Scalia, one of the Court’s great scholars and intellects, he is not a Justice with whom
one would casually associate the label “popular constitutionalism.” Yet, since the 2005
publication of his influential book Active Liberty, followed in 2010 by Making Our Democracy
Work, Justice Breyer has engaged in a continuous effort to educate the public about the workings
of the Court and the relationship between our constitutional law and our democracy.
He has not sought, I should say, to arouse a social movement, but instead to sustain
what my predecessor Eugene Rostow might have called a “vital national seminar,” albeit
a seminar of an increasingly transnational character. Justice Breyer’s new book, The
Court and the World: American Law and the New Global Realities, adds yet again to this
invaluable educational project. The book seeks to demonstrate both that American law is not,
and should not be, cut off from the global legal order. Justice Breyer has crafted this
message to reach a broad audience – from classrooms in Tunis to courtrooms in Beijing.
And, of course, he has made special efforts to educate the American public, including
a recent appearance on the Late Show with Stephen Colbert. Before Justice Breyer came
onstage, there was a raucous musical performance by The Dead Weather, and, when everybody’s
ears had stopped ringing, Colbert began the interview by offering his own form of blessing.
“Thank you for being here, Justice Breyer,” he said, “you’re really classing up the
joint.” So we are especially pleased to have Justice Breyer class up this joint on
this topic, because he is a founding member of, and an indispensable participant in, our
own Global Constitutionalism Seminar, which he has for two decades attended and which
concerns many of the same questions that lie at the heart of The Court and the World, his
book. And I say this humbly because I’m mindful of the fact that Justice Breyer
has deep ties to our northern neighbor, the Harvard Law School, where some believe that
“YALE” is an acronym for “Youth Against Law and Education.” Youthful as we are,
here in New Haven, we will never stop searching for an occasion to learn from Justice Breyer,
to honor his achievements as a giant of American law, and to delight in our special connection
to him. Before we hear from our speakers, I’d just like
to say a few words about today’s Symposium and the extraordinary man whom it honors.
In September of 1996, Paul Gewirtz, who is the founding father of Yale’s own Global
Constitutionalism Seminar, was welcoming Justices Breyer and Barak, and others from around the
world to the Seminar’s very first session. And at precisely the same time, in the same
month, Frank Michelman was delivering a lecture to inaugurate the Brennan Center Jorde Symposium,
which is a Symposium designed to be a living memorial to Justice William J. Brennan, Jr.
Over each of the past 20 years, the Brennan Center Jorde Symposium has provided support
and an occasion for a distinguished lecturer to travel to two schools. The fall lecture
is typically held, as it was this last September, at Berkeley School of Law, where Professor
Tom Jorde, a graduate of this School, taught for many years. Professor Jorde’s intellectual,
legal, and ethical commitments, were, like my own, profoundly shaped by the year he spent
as a clerk for Justice William Brennan. And today, we thank Tom for his inspired creation
and generous support, as we also thank John Kowal, the Brennan Center’s tireless Vice
President for Programs, for keeping this important conversation alive. The design of today’s Symposium is an especially
fitting way to remember Justice Brennan. Justice Brennan believed deeply that we come to know
ourselves as a free people through impassioned debate. Brennan loved to joust, always amicably
and ever cheerfully, but never at the sacrifice of his own serious and searching views. Justice
Breyer shares this quality of engagement. When asked what he would say to the fiercest
critics of The Court and the World, he replied simply, I’m quoting him now, “I say I
have written this book for you.” In this spirit of enlightened exchange, today at this
Symposium, two celebrated commentators will respond to Justice Breyer’s lecture. The
first, whom the New York Times describes as, and I’m quoting now, “John Marshall and
Earl Warren wrapped into one,” served as the President of Israel’s Supreme Court
and literally created the Israeli national constitution. Because of his deep commitment
to judicial craft, his profound grasp of human values, and his inspired internationalism,
Justice Aharon Barak is among the world’s most influential jurists. We are also delighted
to welcome Professor Curtis Bradley of Duke University Law School, who has generated some
of the most perceptive and, at times, provocative scholarship on essentially every aspect of
the dynamic relationship between American law and international law. He is a renowned
expert who has set the transnational agenda for scholarly debate in the field of foreign
relations law. Today’s Symposium aims to draw out the distinctive, and, at times, differing,
voices of these three outstanding figures – Breyer, Barak, and Bradley. And its design
expresses the hope that a little Brennan-like jousting might bring us closer to the truth. I would like to close with the thought that
The Court and the World would have delighted Justice William Brennan. He shared many of
Justice Breyer’s core philosophical commitments, including the radical belief, the radical
belief, that law should make common sense and serve democratic values. For Justice Breyer,
the lessons of his father, Irving Breyer, a lifelong advocate for San Francisco’s
public schools, are as indelible as the words engraved beneath his father’s wristwatch,
which the Justice now wears with pride every day. And likewise, Justice Brennan was inspired
by the memory of his own father, a coal heaver from County Roscommon, Ireland, who became
Newark’s Commissioner of Public Safety. Brennan was inspired by his father to ask
sensible questions of the law – questions like: “Why shouldn’t the Constitution’s
demand for fair procedures apply to the needs of both rich and poor?” Brennan’s efforts
in Goldberg v. Kelly to answer that very question produced, and here I quote Justice Breyer
quoting him: “something rare in the law— a symbol of the need for equality, dignity,
and fairness.” As Nat Hentoff observed, Justice Brennan was engaged in a “continual
battle for five votes to help the Constitution leap off the page and into people’s lives.”
Today, Justice Stephen Breyer carries forward that legacy. For, like Brennan, Breyer is
at once boundlessly optimistic about the American experiment while deeply humble about the daunting
challenges it faces. Justice Breyer is in equal measure a master diplomat and a master
dissenter. His work is at once supple and capacious, both well-reasoned and passionate.
Think, for example, of his recent painstakingly researched and morally profound call for the
Court to reconsider the constitutionality of the death penalty. In an essay written
in the final months of his life, Justice Brennan asked of us “continuous hard work” to
protect our truest national treasure, the rule of law. And he left us with these words:
“If I have drawn one lesson in my 90 years, it is this: To strike another blow for freedom
allows a man to walk a little taller and raise his head a little higher. And while he can,
he must.” So, please join me in that spirit in offering a warm welcome to Justice Stephen
Breyer. So, before we start, two quick announcements: the first is there will be questions after
the panel, and the second is when the time comes to adjourn, you’re all invited to
join us for a reception in the Alumni Reading Room, but please wait for the Justice and
the panelist to leave the table and leave the auditorium before you exit. Thank you. Justice Breyer. [Stephen Breyer] Thank you but before I begin
I’d like to have maybe 15 seconds of silence for Justice Scalia, who was a good friend
and really a life force at the Court, and it’s going to be a grayer place without
him, and a decent man who’s made an enormous impression. We’re all sad. We’re all sad
at this moment. So let’s have about a few minutes, a minute, or half a minute of silence. All right. Thank you. And I’d be, more than
half a minute of thanks, my goodness. That was a very nice introduction. How am I going
to live up to that? My father’s most profound advice that he really meant—stay on the
payroll. It was. I managed to do it. I’m delighted that Aharon is here. We participated
in this seminar for years. He is—all they said about him is true. And we used to communicate
by mental telepathy. It was great. And thank you very much for coming from Duke. And Yale,
I mean Yale, I’d forgotten those nasty things that Paul Freund made up about Y-A-L-E or
whatever it is. My experience here in Yale was Paul Gewirtz brought a visiting foreign
delegation, and I was trying to explain to them that most law in the United States is
actually made in the states. And I asked them what, I ask all the 10th graders who come
to the Court. I love to talk to 10th graders. I say to them “In what city is the law made
that really affects you the most?” If they’re from California, they’re supposed to say
Sacramento. And here we are and I said “What city do you think they make the law that affects
us the most right here at Yale?” And I could hear, “Hartford, Hartford.” So I said
to [former Yale President Richard] Levin, “What is it?” Hartford, yes, Hartford.
So I said Hartford, of course. And then at the end of the two days, Paul says to them,
“And do any of you have any further questions?” And the head of the delegation says, “Yes,
I have one question.” He says, “We were all wondering why do they make almost all
the law in the United States at Harvard?” All right. Anyway, and Yale really helped
me with this book. Aharon and I were trying to work out how many, he’s written three
books out of this seminar. But there are about four more that bear a considerable influence,
and mine is just copied word for word. I mean that Yale was very helpful, research assistance
and Paul’s part and the rest of it and Judith Resnik and everyone, and the Dean has been
terrifically helpful in finding the research for me, just great. Thank you. All right. So you’re the victims of this
enterprise. And I’m going to talk about this book. And obviously, he said, I try to
explain to people. I try to explain clearly. I have written other books. My first book,
by the way, which is A Regulation of Energy by the Federal Power Commission written with
Paul MacAvoy, is still available to you on Amazon. Hey, you know, it only costs a penny.
It’s fabulous. You can get books on Amazon for a penny. Okay, I mean, let’s not go down
that road. But my second book, which was called Regulation and Its Reform, got into the hands
of a reviewer in the Los Angeles Times. Well, I mean, I know the subject, it’s regulation,
it’s reform. All right. He wrote the following: “In Alice in Wonderland, Alice and the dormouse
emerge from the pool of tears and the dormouse begins to read from Hume’s History of England.
‘Why are you reading that?’ said Alice. ‘Because,’ says the dormouse ‘we’re
wet. And this is the driest thing I know.’ That’s before Breyer wrote this book,”
he says. Anyway, stay away from that. I have written this book not really to reply to Justice
Scalia’s views or those of anybody else. It’s serving a different purpose. I mean,
the purpose that I really think of it is serving two. For a general audience, let me put it
this way. Some of you, I hope, have read The Charterhouse of Parma. It’s a great novel,
great novel, one of the greatest. And it opens with Fabrice del Dongo, who’s the hero,
and he’s wandering around in Waterloo. And the bullets are flying and the smoke is everywhere,
and Napoleon is charging back and forth on his horse. And he thinks to himself, “Something
really important is happening here. I wish I knew what it was.” And that’s how I
feel when I hear words like interdependence, globalization, the world is shorter, I mean
smaller, shrinking, whatever the normal cliché is that you hear. And I thought I would write
to try to tell people rather concretely what those words, that interdependence, globalization,
you can’t even say it without thinking it’s a cliché. But what does it mean concretely
and absolutely specifically for one significant American institution, that’s the Supreme
Court. That’s an institution on which I serve, so I see it. I know it. I know it on
the daily basis for 20 years. And I’ve seen change. And the change that I think, one of
the changes and perhaps the most remarkable change, is the change in the number of cases
that require a judge to know something beyond our own shores in order to make a sensible
decision in that case. And that’s all I’m doing. I’m giving, in a sense, a report
from the front. It’s a report from the front about what I see happening, happening not
because of anybody’s philosophy or view of law or anything like that. It’s something
that’s happening because of changes in the world. And in the next few minutes, I’ll
simply give you a few examples. And the book has quite a few organized in a way so people
can take them in and see that they’re in different fields and so forth. Let’s take one that is of great interest
to a lot of people who aren’t judges and lawyers, and that’s the problem of security,
security and civil liberties, and try to bring that up to date. If you go back to the history
of the Alien and the Sedition Acts, and I recommend it because they were pretty bad
news. They weren’t exactly consistent with what we think of as the First Amendment. I
mean, no, zero. But what did the judges say about that? I haven’t found any history
book that tells us, and I suspect that it doesn’t tell us because they didn’t say
anything. It was left to the political system to work that out. That was at a time when
there was war with France or maybe war with England or maybe both, or maybe both countries
were seizing sailors. Anyway, you can look at your history books. Go to the Civil War
and see what the Court said. Answer: not much. In the face of what? In the face of—hold
it, of course, it was a terrible war, it was a terrible time—but in the face of President
Lincoln taking tens of thousands of Americans who were not soldiers and putting them in
prison. Steward, who was the Secretary of State, called in the British Ambassador one
day and he said, “You see that bell? I can push that bell once, and I can have anyone
I want in New York State thrown into prison. I can push it again, and I can have anyone
I want in Indiana thrown into prison.” “Tell me,” he said, “does the Queen of England
have such power?” And what did the Court say? Nothing, until after the war, leaving
the habeas corpus act. But nothing, nothing. Not until the war was over. And what was the
legal theory? Well, maybe it was Cicero. Cicero said 2,000 years ago that, I used to translate
it like this, following my Latin teacher in high school, Ms. [inaudible], she didn’t
translate it like this. I said, “When the cannons roar, the laws fall silent.” That
was a pretty good translation except somebody in an audience pointed out to me that the
Romans didn’t have cannons. So I had to change the translation but you get the point.
In time of war, the laws fall silent. And that had a very powerful influence. Of course,
that was what was going on. That was going on in the Civil War, and try World War I.
And it’s filled with those who were Learned Hand, the case of the masses, and others.
There was lots of civil liberty. It’s war time. What’s the attitude of a president?
Biddle the Secretary and the Attorney General under Roosevelt said, “I’ll tell you the
attitude in war time of President Roosevelt or any president. Their attitude is we’ll
worry about winning the war. We’ll worry about the Constitution later.” Mm-hmm. Probably
is their attitude. And what did that lead to? Well, in World War II, which is in my
lifetime, in World War II, I can remember my mother taking me down from San Francisco
driving down the Peninsula, we’d pass Tanforan Racetrack, and she’d said that’s where
they ordered the Japanese to go during World War II, i.e., 70,000 American citizens of
Japanese origin were taken from their homes at the West Coast and were brought to camps
where they stayed during the war, against their will. For what reason? No good reason.
I mean, history suggests that. History proves it. I mean, DeWitt who was the general at
the time in the 6th Army in San Francisco in The Presidio, he had a list of things about
why this should be done and 763 messages sent to Japanese submarines off shore, and people
were worried in January 1942 about a Japanese invasion of California, five instances of
sabotage, wait, Earl Warren was for it, a major force. He said later, “It’s the
worst thing I ever did.” Who was against it? J. Edgar Hoover. “No need,” he said,
“I can handle the sabotage with the FBI.” But they were sent and Fred Korematsu decides
to bring a case in San Francisco. His lawyer is Ernie Besig. Many years later, I met Fred Korematsu. I
met him because next door in Cambridge, to our house, was Ann Besig, who
was the daughter of Ernie Besig who was the ACLU representative in San Francisco, who
represented Korematsu. So she invited me over to meet him. I liked him very much. He was
a very feisty guy, and he was great. And his parents had told him, “Don’t bring the
case. Don’t rock the boat.” And he wrote a little thing. It’s good. He says, “This
is America.” He says, “They can’t make me do this. I’m an American citizen.”
And he got Ernie Besig to represent him but the ACLU, by the way, wouldn’t underwrite
that brief. But you see it was war time, and they’re worried about an invasion. They
did join the case later, the ACLU. They did but only when it got to the Supreme Court.
Now, it did get to the Supreme Court. It got there in 1944. By that time, nobody is worried
about a Japanese invasion of California, and Korematsu is pretty certain he’s going to
win. Moreover, two lawyers in the Justice Department, Burling and Ennis, they’re charged
with writing the brief for the government in the Supreme Court. And they got suspicious
because of an article that had been written somewhere about the basis for holding the
Japanese. So they called in reps of the FCC and the FBI, and they asked the FCC, “Go
and look into the 763 instances of signaling the Japanese submarines. What was the fact
there?” They came back a week later, documents like this, and they said there was no signaling.
They said, “Why’d they say it?” He says, “These are all buck privates and so forth.
They didn’t know how to work the equipment.” He said, “But how did you do this so quickly?”
He said, “Oh, we didn’t do it now. We did it at the time. We did it at the time.”
And General DeWitt knew it. You see, there was nothing. Nothing. The five instances of
sabotage, three of them took place after they’d moved the Japanese, and the other two, J.
Edgar Hoover said, “We had well under control.” So Ennis and Burling say, no we’re not signing
the brief. Then, they hire, the Department got, to get them to sign that brief, the person
who was running the War Section of the Justice Department, Herbert J. Wechsler. That’s
a name that means something to some of us. And he was very good at getting people to
agree to things. So he wrote a footnote that was totally incomprehensible. Well, not quite,
but if you read it seven times, you would see it says, “Don’t follow DeWitt. He’s
wrong. There is no evidence here.” But you had to read it pretty carefully. So I had
always thought that maybe the judges didn’t read the footnote. But then I did look at
the transcript and Charlie Horsky, who was representing the Japanese American Defense
League, says to the judges, “Read the footnote.” And if you look at Murphy’s opinion, you’ll
see he read it. I mean, they knew. So, result, six to three for the government, for the government.
So it was upheld, that movement of Japanese, the Japanese Americans, the Japanese American
citizens taken for no reason from their homes and put in camps. And what’s the reason?
I mean, this was Black who wrote the opinion, Douglas, Frankfurter, liberals who were in
favor of Board of Education, three dissenters, Roberts, Murphy, and Douglas. Why, why did
they do this? Well I suspected the reason but somebody who got notes, which I didn’t
see, said this was the reason, said that Black walked into that conference and said in effect,
“Someone has to run this war, either us or Roosevelt, and we can’t. And, therefore,
Roosevelt has to win.” You see, Cicero, Cicero. Well, things began to change. They began to
change, really, I think, with the Steel Seizure Case, very interesting case, World War II,
absolutely fascinating, and there the Court, Jackson, Frankfurter and the others say President
Truman went too far, behaved unconstitutionally when he seized the steel mills in order to
assure a supply of steel for weapons to the army fighting in Korea. War time, good reasons
for the government over here by the way. No, why did the Court strike it down? My own view,
it was a reaction to Roosevelt. They were really fighting Roosevelt. And if you wanted
to strike down what Roosevelt was doing, it’s easier to strike it down when he isn’t doing
it and you have Truman because Truman is much less popular. I’m just saying. But in any
case, they did hold it unconstitutional. They said the President has gone too far. And where
are we now to bring us up to date? Well, I, this is where I think we are, Guantanamo,
we’ve had four cases, two of them pretty significant. I mean, Guantanamo detainees,
can we get into Court? Congress passes a law that says, “No, you cannot get into Court.”
No detainees can get into Court, and our Court says that that is unconstitutional. It violates
habeas corpus. Bin Laden’s chauffeur, he brought a case, not the most popular person
in the United States. He won. He won. You have to have the elements of due process.
Now what’s more significant, the actual details of the cases, in my mind, is that
we held the, we decided the cases, and we decided them for a person who is a detainee
at a time of security threat, you see. So what are the key words from that perspective,
words that I joined, Justice O’Connor wrote, “The Constitution does not write a blank
check to the President, not even in time of war.” Fine, no blank checks, no blank checks.
But that long windup brings me to what’s a very short pitch because as soon as I say
that what ought to be in your mind, fine, no blank check. What kind of check? What kind
of check does it write? And the cases have been criticized from every point of view.
One group says, “But you shouldn’t have gotten involved at all. What do you know about
national security? Not much.” And I admit and say, of course, the Constitution delegates
the security powers to the other two branches, the President and Congress, not to us. But
it does delegate to the judges a power to protect basic human rights. And what happens when those two things conflict?
Of course, we’ll be involved. Solution, no blank check. “Wait a minute, that’s
much too vague. You should have been more specific. You should have given us a few details.
You should have gone quite a lot farther in saying what they can’t do.” Really? We
should have? Why didn’t we? Because I don’t know. If you want to be truthful about it,
I don’t know what the answer is. I can speak in generalities. I can say well, of course,
Jackson and I just heard a French jurist, very great French jurist, quote Frankfurter
on this but I think he might have been quoting Jackson that the rule of law does not mean,
he said, “Rule by the weak. To have the rule of law doesn’t mean you have to give
in to terrorism for example.” Of course not. But it does mean that the judges are
there to protect basic values, basic human rights written into the document. But wait,
we’re still too high a level of generality. Well, let’s go down a step and he’ll say,
“Look, before you depart,” and this is Frankfurter or Jackson, whoever [inaudible]
read, he says, “Before you depart from traditional liberties in the name of security necessity,
you have to prove to us, the judges, that there is, it’s really necessary, not just
a convenience, not a convenience for the police, not a convenience for the Army, not a convenience
for you. It is a necessity.” Okay, we’re a little bit, coming a little
closer, a little closer, except they’ll say it’s a necessity. That’s what the
government’s going to say. And they’re going to have that in their brief. Why would
they do it if they didn’t think it was a necessity? Of course, and then, now this is
the problem and how, what a pity I don’t have answer, and so how do we know? We have the
help of the lawyers. They will be there saying, “Why, why do you need this?” Or they’ll
ask a second question, and the second question will be, “Why not? Whatever that need was
there, why can’t you do it this way, which is a less restrictive way?” Those are traditional
legal questions. But we are going to run into a bunch of questions. Suppose the answer is,
why, the answer is “I can’t tell you. It’s classified.” And how do we work with
that in a way that protects legitimate reasons for classifying but still gets a judicial
look at things? How do we find out whether something really is necessary or there are
other ways to do it? Again, I say, it’s been helpful for me to find out what other
nations do, not that they have the answer but just to find out, so that we can better
evaluate in terms of security, what the need is; in terms of ways of dealing with it, what
the possibilities are. When I heard Aharon describe in depth, and
I wish you had an hour to listen to him on this, of how they’ve worked out a system
in Israel where sometimes it is necessary but we want the judge to find that out even
in ex parte, and then you come in next week and you better have a better reason, and next
week you better, better, a continuance. You see, it continuously gets tougher for the
government, week by week, to justify something that couldn’t ordinarily be justified. That’s
something we should know about. We should know about how, what Britain is doing. We
should know about what France is doing. And above all, we have to have some way of understanding
a security problem that’s likely to last and extend well beyond our shores. And I end with the question, how do we find
out? That’s all, that’s all what that long line that all I want to show you the
nature of the problem that’s in front of us and how it reaches out and demands that
we know something beyond our shores. There are lots of other examples. You can take much
less “glamorous” fields. What about, I love the case of the student from Thailand,
studying in Cornell. And he’s in Cornell and he says, he discovers that his textbooks,
which are pretty expensive, same textbook in English sells in Bangkok at a much lower
price. He writes to his parents, “send me a few.” And they sent more than a few actually,
and he began to sell them. And after a while, he made quite a lot of money and the publisher
got a little bit annoyed and sued him. Now, could we, does he have the right to do that
or not? And the answer lies in a few words, very incomprehensible, in a long statute.
And it’s not the answer so much that interests me though I had a great interest at the time,
but I walk into my office and I discover a stack of briefs like this from all over the
world, Asian lawyers, European lawyers, governments from different counties. I said, what is going
on? Why is there this tremendous interest in, I mean, it’s interesting but really, this
many briefs? And in one of them, I find what I think is a pretty good answer. He says,
you know, copyright today is just not a question of film or music or books. Try automobiles,
the software in automobiles is often copyrighted. Try going into any store you want and look
at any product and you’ll see a label, and that label is copyrighted. And at the bottom,
he says that we estimate that your decision in this case will affect $3.2 trillion worth
of commerce. That’s a lot, even today. Right, yes. All right. And look at the antitrust cases.
We have a plaintiff in Ecuador suing a defendant in Holland. The Ecuadorian is a vitamin distributor,
and the Dutch was a vitamin maker. And they were, he was in a cartel apparently with an
American too, but they’re suing the Dutch and they want to sue in New York. Can they
do it? Well why’d they want to sue in New York? I mean, one reason might be if the price
of vitamins is too high, the distributer can’t get them and he’s too weak, and he can’t
get to Europe. That’s one possible reason. Another possible reason is called treble damages
but, so he’s in New York. But the question is, can he do it? And to answer that question,
under the statute, we have to know and we did know. The very lengthy kinds of cooperation
and the very lengthy nature of the kinds of enforcement activities that both our own Justice
Department and the European cartel authority are engaged in. Read the opinions, and you’ll
see that that’s a necessity. The same is true of the securities law where
a plaintiff from Australia sues for stock that he bought over the Australian exchange
in an Australian company but sues in New York. Why, the fraud happened in Florida. Well,
do we have jurisdiction or not? Lots of foreign countries file briefs and say “Stay out
of this. You’ve going to affect our ability to enforce our own laws.” And they won with
that, they won with that. It happens all over the place to the point where I would say that
this word, which you understand but not everybody does, the word comity. It sounds terrific.
I mean, what is comity exactly? And I think, at least now, what it is more and more, is
it is a question of trying to get laws from different countries to work together harmoniously,
laws that aim at about the same thing. And that’s a change. That’s a change from
what it was. I can go into a lot of other areas. I don’t know how many you want me
to go into but I mean even marriage. Marriage? What have we to do with marriage? I mean,
if you want a tough job within the judicial system, try the family courts. I mean, that
is tough. I have friends both in England and Cambridge, Mass. who are involved in that.
And what they say, Eddie Ginsburg told me this, he’s a good family judge, he says,
“I tell the couple that’s feuding or they’re fighting over children or something like that,
you decide what to do, make an agreement, please. Because if you make me decide, I will
decide something worse than you would’ve agreed to together.” I mean, that’s a really hard job. And family
judges know about it. State court judges know about it. Federal judges know very little
about it, if anything, usually nothing. And we have three cases within two years, all
involving the interpretation of a treaty against abduction of children. With, in those particular
cases typically, a group on one side of people who are strongly against any abduction and
groups on the side who are very strongly against spousal abuse, which can lead to abduction.
You see? And they’re asking us, who know less about that than we know about most things.
And don’t tell me what you think about, we won’t go down that road. But the point
is again this, why, why are we deciding these things? Because they’re the subject of treaties.
Why are they the subject of treaties? They are the subject of treaties because today
marriage is more and more and more a matter that crosses national boundaries. It’s all
over. Treaties? Treaties? We don’t have just treaties. We have executive agreements.
We have agreements of all kinds, and they go beyond national boundaries. And they affect
us, those agreements. My colleague, another member of our seminar,
Sabino Cassese, had all his research students in Italy going and looking up this number,
and he came up to the conclusion that if you ask the question how many organizations are
there with little bureaucracies, which then make rules that affect, in practice determine
how people have to act in more than one country, it isn’t just the UN. It’s also, well,
he found the number was… How many think it’s more than 50? Yeah, quite right. More
than 500? Good. More than 1,000? More than 2,000? Well, it is more than 2,000. Anyway,
that’s a good quiz but nonetheless, how could there be so many? They’re all over
the place. The one that affects you the most, that affects you every single day of your
life, you probably never even thought about, it’s ICANN, which is a corporation in, that
has its base in Los Angeles and it affects the rules of domain names and other rules
of the Internet. That doesn’t affect you? Of course it does, every hour. I’m amazed
you’re not all looking at your tablets right now, you see. And it can be the UN. It can
be the International Trade Organization. It can be, by the way, the international olive
oil council, blue fin whale commission. I mean, they are all over the place. And what is the status of those rules and
at what point will we, in our court, begin to have the question they’ve already had
several times in Europe, the question that’s come up several times in Italy, in Germany,
in Austria, the question is this, we’ve delegated tremendous power to the European
Union. They make rules on everything. Do we have the right under our Constitution to delegate
that power to the EU? All three of those countries have said, “In principle, no. We can’t
delegate every power. There are reserved things we can’t delegate.” But they have never
found one actually they couldn’t delegate. But nonetheless, that’s what they say. Now,
just imagine in our court, suppose that we can’t delegate things, powers or there’s
narrow limit on what we can delegate, how will you in your generations solve the problems
that are plaguing the whole world really? And not just terrorism, environment, commerce,
health, it’s all over the lot. And now have you thought about the same question
this way. If the answer is “as much as you want,” what happens to Article I of the
document that gives the power to congress to legislate? A question similar in some respects
but not totally to a question that was asked at the time of the New Deal is how can things,
how can powers be given to these administrative agencies which are not mentioned in the Constitution,
resolved in Crowell v. Benson and other decisions. And how, how, how will we resolve them? I
mean, all I’m trying to do is to get you orally or by reading to have a slightly different
cast of mind in the way that you look at quite a few—10%, 15, I’d say, 20% maybe, of
the problems that are now appearing in our court. And I want to go to the trouble of
doing that because I think it’s a pretty important thing to start looking at the problems.
People do. I don’t, they don’t have to start but continue and more so looking at
problems in this way, which means not a specialized course in international law but really these
things come into lots of courses. It’s an internationalization or a broadening of the
frontiers of many courses that have traditionally have been pretty domestic in their focus. Now, take the, it’s limited, I’m not making
some tremendously broad claim, but I want at least people to see what’s going on and
the questions that’s likely to raise from a particular direction. Why? I was going to
save this but I don’t think I will. Why do I want that to happen? Why do they want—
here’s a broader reason. I want it to happen of course because when you said I wanted to
persuade the people who are really against me, I think the people who are really against
me in this argument if they are against me in the argument, I’m not sure, but they
say “Don’t refer to foreign things. Don’t refer to foreign cases, etc.” What is their
reason? I persuade them so beautifully, and then they don’t get persuaded at all. I
make the most fabulous argument about how we should pay attention to what’s going
on elsewhere. He’s a judge just like me. He has a document, which he sort of created,
helped create, but just like I do. And he has problems sort of like mine, and so why
don’t I pay some attention to what he says. I can read it. I don’t have to agree with
it, and then the congressman, so and so, who is on the other side says, “Fine, read it.
Just don’t refer to it in your opinion.” Or, I say, but there was the case we had in
that seminar, the Hungarian judge, the Hungarian whose own congress or parliament was just
paying no attention to the courts, I say, “We refer to his cases. He refers to ours.
If we refer to them occasionally, that will help build a rule of law, to help preserve
democracy.” He said, “Fine, write him a letter. Just don’t put it in your opinion.”
What’s he worried about? He’s worried, he’s worried about losing our, watering
down our, seeing diminished our basic American values. And that’s not just a code. He’s
worried about it. Well, I say, I want you to read this because I think that by the time
that you finish reading and see what this is like, you will say the best way to preserve
our American values is to participate in matters, problem solving, efforts to write rules or
regulations, efforts to talk to other people that go beyond our own shores. And Post pointed
this out in a good phrase. He said, “You know, if they don’t, if we don’t, it’ll
go on anyway. People get together anyway, and we just won’t be there. And when we’re
not there, we’ll still be affected, so better to be there.” And that’s what I’m trying
to do. I’m trying to show a picture of what’s actually going on so that people will see
that there are really a couple of ways that we can resolve these problems in front of
us. And what I’m showing you are the efforts that are being made now to do so under law.
And if we can’t resolve these problems under law, people will find other ways. And those
other ways are not nearly as attractive. So we all have an interest in this, of trying
to get this legal system extended beyond our shores, as it is, to work. And that isn’t
a matter of individual judicial philosophy, in my opinion. It’s a not a matter of personality.
It’s not a matter of politics. It’s a matter of fact, and it’s the facts that
are being presented in front of us, to us, by the nature of the world. All right. Now,
you have a picture of the book and maybe it is not quite like Hume’s History of England
as read by the dormouse. Thank you. [Aharon Barak] So I must say that I listened
to what Justice Breyer said and I read the book, and I’m really embarrassed. I’m
embarrassed because I agree with everything he said. So why am I here? I am here to ask,
if I agree to everything he said, why does he say so? Why does he say it? It’s obvious.
Of course, any legal system has a situation in which a judge in this legal system has
to refer to foreign law. Anyone who has a class on conflict of laws knows very well
that a local judge, a municipal judge as this is called, has to refer to another legal system
and has to solve his own problem by looking what another legal system says. That’s A-B-C.
No one says that it’s not so. No one claims that American, that an American judge can
solve all his problems by only looking to American law. So what’s the point? That
was my embarrassment. I read the book and I asked myself, what’s the point? And I
couldn’t find the point. So I started to think. Because in my country, I can’t see
that a judge, clearly not a judge of the Supreme Court of Israel, would sit and write such
a book. For what? Everything he says is right. Of course, I
cannot solve a problem about oil and about copyright that takes place in another country
only by my own legal system because my own legal system tells me go to another legal
system and have a look. We have in Israel a beautiful law that says that everyone who,
under German law, received reparations for the atrocities of the Germans may claim this
amount from the state of Israel. This is part of the agreement of reparations with the Germans.
So here I am sitting in an Israeli court and I have to decide if the guy will get, has
the right under German law, so I read German law, and I have to decide what German law
says about it. And then I read the German case, and I said no, the German case has misinterpreted
the German law, and I do it. And I have no major problems with that. So what’s the
problem? That’s my problem. What’s the problem? What’s the point is my problem.
So I said to myself, well, there is a point, an important point, which is not mentioned
expressly in the book. The book has 360 pages. In 10 pages, Justice Breyer talks about the
problem he mentioned here in passing, the question of to what extent should the American
Supreme Court refer to a foreign law in interpreting the American Constitution. So that’s the
point. But one is not connected with the other. And he is right. He wrote 360 pages. Only
10 pages, he said about this problem and basically hasn’t said anything about it because he
just said, “Look, if you are interested in this question, go and read the article
that Professor Waldron has written about it and that’s all. So what’s the point? Clearly, the point
is not that in order to convince people that American Supreme Court has to rely in interpreting
the American Constitution on foreign law, this is the proposition and the proof of the
proposition is the conflict of laws or other cases that Steve just explained to you because
they are two different questions. I may think that the only way to construe the American
Constitution is to understand what the American Constitution says and construe it in its own
terms on the one hand and agree that in order to solve a problem about conflicts, problem
about trademarks that have to do with another country, I have to refer to the laws of another
country. One doesn’t, it doesn’t follow from the idea that 15% of my cases are cases
in which I refer, I, American Supreme Court, refer to foreign law because our system tells
me to go to foreign law. So there’s no connection between this proposition and the proposition,
and therefore, when we construe our Constitution, we have to take into account what other, the
way that other legal systems construe their own constitution. It’s a non sequitur. One
doesn’t follow from the other. So, I again ask my question, what’s the
point? And I told this to Steve, no Israeli judge would write such a book, clearly not an Israeli
Supreme Court Judge. In fact, the judges who are expert on this questions are trial court
judges. He mentioned, himself, family court judges. They know, if he has a family case
in which there is an external element, an abduction from outside or etc. you have to
go to the other law and have a look what they say about it. That’s A-B-C. So I ask myself
again, I told you I was embarrassed, so what’s the point in writing this book? You know,
he writes a book, 360 pages, the word originalism is not there. They word originalism does not
appear in the book at all. Well, I think that the whole book is an attempt to say originalism
is wrong. No? Ten pages are there in which he talks about the view about originalism,
does not mention originalism, and clearly, that’s not his point because there are no
attempts done to convince us that originalism is right or wrong. So I’m asking myself,
what is the point? And I came to a conclusion that my, my way of reading the book is just
wrong. That I’m trying to read the book in a very technical, analytical way of thinking,
which is typical to me. This is the way I’m reading books. Justice Breyer didn’t write
this book for me. He wrote another book. So the question I asked myself is what is this
other book he wrote? What for? What’s the point? And here I recalled, Steve, I’ve
mentioned it to you. I don’t know if you remember. You have to educate me about it. We met together
in 2003, I think it was. There was a conference held at Columbia Law School, 10 years for
the appointment of Justice Ruth Ginsburg Bader to the Supreme Court. And that was a very
nice event, and half of the event was her contribution to American local law and another
half was the question of comparative law. And we, both of us, were talking in the second
part, and of course, we had the same views on this matter. And I remember Steve telling
me, either to me or to everyone I don’t remember, but that’s not the point, and
he said the following which is stuck in my mind, he said, “You ask why the Supreme
Court of the United States does not refer to comparative law? I tell you why, because
the lawyers don’t argue it before us. And if you will ask me, so why are the lawyers
not arguing before you? He answers because no one taught them about that in law school.
And if you ask why hasn’t anyone taught about it in law school, he will answer because
the professors have not taught them about comparative law. And if you ask me why have
the professors not taught anything about comparative law, I’ll tell you because the Supreme Court
doesn’t cite comparative law.” Here is the vicious circle that he told me, and this
stuck in my mind. He’s right. There is here a vicious circle. So I said to myself, Steve
decided to break the vicious circle. But how to do it? So one way to do it is my
way to do it, to take every little chain in it and say it’s wrong, wrong, wrong, wrong.
No, that’s not his way. As I mentioned to you, originalism is not there. Comparative
law is 10 pages. It’s a book about how an American judge, most of the judges are not
Supreme Court judges but trial court judges, how an American trial court judge including
American Supreme Court judge deals with matters that have an international component in them,
that’s the book about. So what has it to do with the vicious circle? And then I was
thinking about it because Steve Breyer has a point. He has written a book not to educate
us that legal matters having international character in it are coming before American
courts. Of course, they’re coming before American courts, so what’s the point? And
I came to the conclusion that he decided that the way to break this vicious circle is to
create another circle altogether, not to go into the discussion about all the chains in
this, all the little details in this chain but to have another theory. So what is this
other theory? And I think his other theory is, “I will write a book not for lawyers.”
This book is not for you here, and it’s not for law students. And it’s not for judges.
It is for laymen. It is for the American people. I think what Justice Breyer has tried to do
is to write a book to, for the American people with the hope that they will read it, and
now, I understand why he goes on TV and talks about it. He needs the American people to
read the book because then a new chain will be created. The American people will read the book and
they will see that international law or comparative law, here you’re making a mix up between
international and comparative law, everything is slightly mixed up, but they will understand
that non-American law is coming to our courts on a regular basis. And it’s, we are not
threatened by it, and we keep our values and then, and they help us in keeping our values.
And we are not alone in the world, etc., etc., etc. And if he will convince the American
people that this is what happened, they may convince or their representative in the legislature
may be convinced that that’s the situation. The representative in the legislature may
convince judges, who may convince lawyers, who may convince law professors, who will
teach you about it. A new circle, outside the vicious circle I was telling you about,
a new circle will be created. And if this new circle will be successful, this is a wonderful
thing. We will get out of all this, according to my view, nonsense about comparative law
business, and we will go into another era altogether. Well, there is a point in the
book. And the point in the book is that my good friend Steve is an optimist. He believes
that he can convince the American people to go this road. It’s a long road to go but
while my criticism of all this is very technical, narrow minded, his view about it is not technical
and not narrow minded but he’s thinking about it in a much, much more global, in a
much, much more optimistic way. So my friend Steve, while I am a short-distance runner,
you are a long-distance runner. You are an optimist, maybe Don Quixote, I don’t know.
But you do believe that by writing this book, you will convince the American people and
a new circle will be created. Will it happen? I hope so. I don’t know. But as we judges
know, there is only one judge who will decide these matters. And this judge is history.
Thank you. [Curtis Bradley] Even though this is, obviously,
a more somber time to be talking about the Supreme Court than we had expected or anticipated,
I’m absolutely delighted to talk with you about Justice Breyer’s book and share with
you my views about that. It’s a very timely book for the reasons you’ve heard. It’s
a very engaging book. You can see how engaging the Justice is himself in person. The book
is very much like that. One of the things that Justice Breyer mentions in his book,
although not in his talk today but he says it repeatedly, is that he reminds us that
the Supreme Court is not the world court. He says that several times. And against that
backdrop, he suggests various functions the Supreme Court can perform when it is not the
world court but it faces an increasingly international docket over the sort that he described. He
talks about how it can promote harmonization, foster collaboration, even help to promote
the rule of law. And in this talk I want to emphasize a different
role that I believe the court does perform and I will argue should perform and using
some of the cases that Justice Breyer talks about in his book but not ones he emphasized
today. And I will mention Justice Scalia at one point near the end of my remarks. The
role that I have in mind is a role that the Supreme Court plays in serving as a filter
between international law as it continues to develop and the American constitutional
system. And I will begin by noting that this role is justified because international law
is made through processes that often make it ill-suited, it turns out, for direct application
in the U.S. legal system and also is often designed to perform functions quite different
from those demanded of domestic law. At least those of you in the room who’ve studied
international law know there are two basic bodies of international law— treaties, which
many of us are familiar with, and customary international law, which people are often
less familiar with. The customary law arises out of the evolving practices and beliefs
of nations. And the United States certainly contributes to it, sometimes very substantially,
but it does not require any specific approval process in the United States legal system.
In addition, because it’s unwritten, its content and even the sources that make it
up are often contested and uncertain. Treaties, again more familiar, certainly do engage with
the U.S. legal system. They require, in particular, the agreement of the President of the United
States and 2/3 of the Senate. Nevertheless, because they are often negotiated with representatives
from different legal systems, different legal cultures, they have often wording and terminology
that are distinct from ones that would be typical in the U.S. legal system. Often, the
art of compromise and agreements require resorting to terms that are vague, unspecified, left
for further resolution. In addition, the executive branch plays a particularly predominant role
in the making of treaties much more so than in the legislative process and indeed has
been the U.S. practice since almost the very beginning after George Washington decided
that consulting with the Senate was not really worth the candle, that the Presidents negotiate
treaties by and large without the Senate or the Congress and then present them to that
body for approval after the fact. And here, by the way, I’m only talking about treaties
that go to the Senate. Many agreements raise other issues and are called executive agreements
but are beyond what I will talk about. A third type of international law and a more
modern sort is the output of international institutions themselves, either because they
have the power to engage in their own adjudication of disputes or they have the power to issue,
in essence, international regulations. Justice Breyer did mention some of that in his remarks,
so to fill in the gaps of treaties, to update them often without having to go back to countries
for additional approval. The growth of this international regulatory law in some ways
resembles historically the rise of the administrative state in the United States but without the
same level of domestic oversight. There is no administrative procedure act for international
regulation. And even more than with the treaties, international institutional regulations are
dominated to the extent the U.S. is involved at all, they’re dominated by the executive
branch. The only agents in international organizations on behalf of the United States are agents
of the executive. So, let me use a few of the examples from Justice Breyer’s book
that he didn’t mention to illustrate how the court is aware of these issues and indeed
certainly allows international law to come into the U.S. legal system but also polices
that boundary in order to protect American constitutional values. So, three scenarios
in particular: the relationship between treaties and the unique American federal system of
government; second, the issues, and Justice Breyer adverted to them, posed by delegating
authority away from domestic institutions to international bodies; and finally, the
issues of domestic application of the evolving customary norms of international law, a particularly
hot button issue when it comes to human rights law. So, the first scenario, treaties and the federalism,
a great case, a very interesting case that this Court decided recently was the Bond vs.
United States case, and Justice Breyer talks about it in his book. The United States agreed
to the Chemical Weapons Convention, a very important treaty in 1997, and one of the things
the treaty calls for is to criminalize breaches of its provisions. And Congress did that the
same year. It unfortunately, essentially, photocopied that Chemical Weapons Convention
into the U.S. Code and that convention deliberately has extremely broad language about what a
chemical weapon might be and what its use might constitute. Indeed, quoting “Chemical weapons,”
both the treaty and the statute say, “are any chemical which through its chemical action
on life processes can cause death, temporary incapacitation, or permanent harm to humans
or animals.” There was a lively oral argument, some of you may recall, in the Supreme Court
about things like giving chocolate to dogs, potatoes to horses, and other things because
it includes anything that could have a chemical reaction that would harm even animals, a very
broad provision. In Bond, the issue was whether the act could be applied to a woman in Pennsylvania
who stole chemicals from her employer and tried to use them to harm another resident
in Pennsylvania as part of a domestic dispute. Did she violate the Chemical Weapons Convention
Implementation Act? Much churned on it as a matter of civil liberty because the other
crimes that the government might go against her for had relatively low penalties. However,
the statute for the Chemical Weapons Convention offers the maximum penalty of life imprisonment
and that is what the federal prosecutor threatened. She was induced to plea bargain but she did
have a right to appeal. In thinking about the statute, the Court acknowledged that a
literal interpretation would in fact show that she violated it. She used a chemical
in a way that could’ve caused harm to another human being without a peaceful purpose, that’s
the one exception in the statute, but the Court majority said this in fact would be
inconsistent with the American federal system of government, which has the vast majority
of its criminal law and enforcement at the state and local levels, not at the federal
level, and that includes normally local poisoning cases of this sort. So the Court said that
if Congress really wanted to do this, it needed to have a much clearer statement of its intent
to take over such normally local and state matters of federal criminalization, and it
didn’t believe Congress intended to do this in the statute that it enacted. That was federalism. Second type of scenario and a more complicated
case although a very interesting one involving delegations of authority to international
institutions. This case seems like an imaginative law professor’s hypothetical. It had so
many moving parts. It’s going to make your head spin. I will not mention all of these
parts but it’s a terrific and interesting case, and Breyer, Justice Breyer talks about
it in the book, Medellin against Texas. I paused just because there’s so much to say.
It begins with the United Nation’s Charter, perhaps the most important treaty in the world.
All nations are parties to it. The United States, of course, is a party since 1945 when
we set up the UN. It has many provisions. One in this case of particular interest, we
have promised in Article 94 that in any case to which we’re a party, we will abide by
the decisions of the International Court of Justice, which is the judicial arm of the
United Nations. All members of the UN have promised to do that including the U.S. Well,
after, as the decades go on since the 1940s, the United States, very internationalist still
by and large during that period, joins many treaties that allow for disputes under the
treaties to be resolved by the International Court of Justice or the ICJ, to give you one,
the subject of the Medellin case. The United States joined the Vienna convention on consular
relations in the late 1960s, which protects consulates and their officials and also very
interestingly has kind of an international Miranda clause in the treaty, which I’ll
talk about why that seemed to be buried for a while but became known sometime later, it
requires any party country when they arrest a foreign national of another party country
to give them notice that they can have their consulate notified of the arrest and to communicate
with their consulate, sort of like the Miranda warnings do for other purposes. Well, the
United States in the same year, 1969, and almost certainly would not do this today for
reasons maybe we could talk about later, joined an optional protocol that said disputes under
that consular convention, to the extent they arise, can also go to this International Court
of Justice. Many years go by. The United States does an
extremely poor job of complying with this obligation of notifying arrested suspects
of their consular rights. Why did that happen? One of the reasons it happened: most of the
state and local police departments had no idea there was such a treaty to begin with.
So the United States did a poor job of advising them and pushing them to carry out this treaty
obligation. And for a variety of reasons, it didn’t seem to get litigated for quite
some time until people particularly focused on the death penalty of the United States
saw that this treaty was routinely being violated at the state level and understandably thought
that invoking these treaty rights might be beneficial to some of their clients on death
row in various states in the United States, and they started litigating it. But they started
losing repeatedly in U.S. courts. Why? These are all habeas cases and the habeas law, I
won’t go into that, that would take many lectures but is quite restrictive, your ability
to raise claims after you’ve been convicted and even these treaty claims are being rejected
because of the habeas limits. Well, that didn’t end the litigation. I said many moving parts.
A series of countries starts bringing cases against the United States in the ICJ based
upon the violations of consular rights of their citizens. First, Paraguay, it was the
first country, then Germany on behalf of a couple of brothers in Arizona who were both
executed, and then finally Mexico, bringing kind of an international class action suit
against the United States on behalf of over 50 Mexican nationals on death row in various
states. And the United States lost all of these cases despite able advocacy by the state
department. And the ICJ finally made clear that the United States had an obligation to
reopen at least the 51 cases involving these Mexican citizens named in the case called
Avena and provide them with what the ICJ called review and reconsideration of their cases
in light of the treaty violations. And then we had one of these Mexican nationals go to
the U.S. Supreme Court arguing they wanted this new hearing that the International Court
had said was required. But this posed a difficult question, which is, is the obligation of the
United States to abide by the ICJ’s decisions, does that operate itself as domestic law within
the United States legal system or is this something, for example, that Congress might
need to implement or might need some agreement to implement. And it’s particularly important
because Texas law, in this particular case, was otherwise the governing law since the
person was convicted in Texas, on death row in Texas, and Texas law said it’s too late
to bring any legal claims including, by the way, constitutional claims. And therefore,
Texas law would normally say if you haven’t raised your claim at trial or on appeal, you
forfeited it under the rules of procedural default. So, if there’s no domestic law
to override, that Texas law will have the last word. And the Court, and it was divided,
determined that in fact this treaty obligation to the ICJ did not operate as direct immediate
domestic law in the United States and it’s a long story, but the bottom line was that
the majority was not convinced and I, I will say, in my own views for good reason, that
the Senate and the President in 1945 intended when they made the commitment to the ICJ to
allow its decision to have direct effect in criminal proceedings in the United States.
I think, that would have been unfathomable to the Senate and the President in 1945. And
the only enforcement they agreed to in 1945 for the ICJ decisions was so the UN Security
Council arm of the UN—as probably most of you know, the United States and a few other
countries is in a unique position in the security council, which is that it has a veto power
deliberately put in in 1945 with United States and some other prevailing parties after World
War II. And the idea that we had a veto over decisions of the Council, the only way to
enforce the ICJ decisions and yet we’re also somehow agreeing to let those decisions
automatically override domestic law and judicial proceedings seems unlikely, and it was unlikely,
said the majority. At any event, the Court was looking to try to figure out what these
treaty obligations should or should not do and whether Congress needed to act. And they
decided that Congress needed to take additional steps. I’m sad to report Congress has not
done so. What a shock. Final example concerns and this is one that
gets into the human rights area which is customary international law, and the case, I’ll mention
one case, the Court has had a couple, the Sosa against Alvarez-Machain cases, all of
these cases, by the way, nicely discussed in Justice Breyer’s book. This case involves
a very old statute called the Alien Tort Statute, which was written first of the statutes in
the United States in 1789, one provision in a big set of statutes that sets up all the
federal court system, buried in one section called Section 9, and it just says in one
sentence that the district courts will have jurisdiction over torts claims by aliens that
are in violation of either the law of nations or treaties. It’s a mysterious statute.
There’s no legislative history. It basically gets buried in the statute books for almost
200 years. There are almost no cases for 190 years ever successfully relying on that statute
for jurisdiction until a second circuit court of appeals in a human rights case called Filartiga
decides in 1980 that in fact when aliens are injured by human rights abuses, torture and
summarily executed, etc., abroad, that is a tort. It’s in violation of the law of
nations, customary norms of human rights, and as long as they can find the defendant
to serve them with process in the United States, they can use the statute to sue for damages.
Many courts, by the way, were still confused by this area of law, and they were working
on it in the lower courts. And some of them—by the way, this wasn’t Justice Breyer’s
fault—but they begged the Supreme Court on various occasions, “Please tell us what’s
going on with this alien tort statute. It’s one sentence. It doesn’t say anything about
remedies. We don’t know anything about how it applies to modern human rights claims.”
It took the Supreme Court, it’s the nature of the Supreme Court that it doesn’t automatically
take issues just because they’re starting to percolate and eventually did weigh in in
2004 in the Sosa case, kind of a strange case involving a kidnapping of a Mexican doctor
that wasn’t, really didn’t fit the pattern of the prior cases. But the bottom line of
that case was the Court tried to allow this litigation to continue with what in that case
Justice Souter called vigilant door keeping, explaining that if the Court was not cautious
then there would be what Justice Souter described as risks of adverse foreign policy consequences
to the nation because allowing claims about what other countries do in their own territories
is inherently going to raise friction and protest, and it does. The state department
hears many of those complaints, and the Court felt that it wasn’t in a position to completely
block that litigation but that it needed to allow it with great caution. Now, this is where I was going to mention
Justice Scalia, who concurred. His concurrence is as always lively and interesting to read.
Sometimes, they became a little too lively to some people’s taste. In the Sosa case,
he begins by saying, “Everything the majority said is wonderful. I wish they would’ve
just stopped about two-thirds of the way through and then we could all have gone home.” But
he complains about them letting the door to remain open, and he says that he’s skeptical.
That notes of caution sent to our disaggregated, large federal court system will really slow
down this litigation, and low and behold, Justice Scalia was right. And Justice Breyer,
in fact, notes that in his book, quoting Justice Breyer’s book, “Many lower courts seem
to find in Sosa a green light, not a note of caution.” And eventually, and I won’t
go into it now, the Supreme Court just a few years ago in the Kiobel case took a more categorical
approach to this Alien Tort Statute in human rights litigation. They said categorically,
it does not apply to conduct purely that takes place overseas. This is a sharp territorial
presumption that really does cut back on much of that human rights litigation and is a very
controversial decision. This was strong medicine, and Justice Breyer in his concurrence in that
case thought it was too strong, that the Court was pulling back too far. And whatever your
views on that, I will just note that the decision still does not preclude Congress from authorizing
broader human rights litigation if it so chooses. And it has from time to time, by the way,
done that in statutes like the Torture Victim Protection Act. It simply leaves the tradeoff
of foreign policy scrutiny and consequences to the legislative branch and the executive
branch, which is a matter of separation of powers. It’s probably better suited than
the judiciary to make those sorts of fine tradeoffs. In sum: The Supreme Court plays an important role
in mediating between international law and the American constitutional system, a role
that is needed, I believe, in light of the different processes used to generate international
law and domestic law and the different functions they serve. Sometimes this means, and this
is a complaint, that the international law applied within the United States looks different
from the way it would look if it were applied in another country or most notably if it were
applied in a tribunal like the International Court of Justice, a tribunal, by the way,
that’s often colloquially called the World Court. But as Justice Breyer usefully reminds
us in his book, the U.S. Supreme Court is not and should not try to be the World Court.
Thank you. [Breyer] Thank you, both interveners. And I,
it’s rare that you give me an opportunity to respond to both with one example. But you
see, he’s, Aharon says, “Well, who is this book aimed at?” Of course, an author
has to think who it’s aimed at. And you’ll see who it’s aimed at in a second. And what
I’d say about Professor Bradley is, yep, thank you. I want, he knows this stuff, much
better than I do, to tell you the truth, that isn’t false modesty, and better than a lot
of people here in the Court, on the Court and in this audience. And what I’m saying
is, pay attention to what he knows, okay, because it’s more important than what you
think. Perfect example, the last example. And a word you left out because it wasn’t
there, the word is how. Okay now, take that last example, it’s Dolly Filartiga. Let’s
make this a little human. Dolly Filartiga comes to New York because she wants to find
the man in New York who’s from Paraguay, as is she, as was her brother, whom he tortured
to death. And she finds this statute. I think, though I’m not certain, he knows it more,
I agree, that this statute really passes in 1790, aimed at pirates among others. It
also was meant to help a couple of ambassadors who were assaulted in the street, etc., but
probably pirates as well, okay? And the Court says, “Yes, you can recover.” She never
thought she would. She really didn’t get money but she got the judgment. And she went
back to Paraguay, and she said, “I came to the United States hoping to look that torturer
in the eye, and I came back with so much more.” Ah. Fabulous, fabulous. But that opens the door
to all kinds of problems. Now, of course, we have the problem, who are today’s pirates?
Who are they? That’s the Sosa problem. Who are today’s pirates? But every statute has
difficulty. All of them do, that’s normal. But there are a few special ones here. One, responding to Aaron, Aharon, sorry, why
Israel’s a little different than America and so are these other countries. Think about
the decision of the ICJ. Now, we’re going to get involved in international law and think
about what Madison said when he said this document here, is a document, I don’t have
the exact words, but the Constitution is a document of power delegated by liberty, not
a document of liberty delegated by power. And what’s he thinking? He’s thinking
in Europe and in other parts of the world, the powers at the center, the king or the
equivalent, and he may delegate liberty to the people. And they’ll have the same liberty
we do, but the delegation comes from there. That isn’t this one. This one, it’s the
delegation up, the primal state is one of liberty, and it’s power they’re delegating.
And the relevance of that, exactly what I talked about in Akhil’s undergraduate
class today. To those undergraduates, in telling about my confirmation process, which
was a little bit of a window of democracy entering into the confirmation of a judge
who they’ll lose control over. At least, they have that power. Nominated by a president,
elected, confirmed by a Senate, elected. We know who these judges are, you see. There
is some control at least in the process, down to the people, but who are those judges in
The Hague? What power do we have over them? And indeed, where is it, that delegated authority?
Boy, it’s four times removed. And you have that basic reaction right today. And do I
think that reaction is benighted? No, I don’t think it’s benighted. It is not benighted.
Do I think it’s totally correct? No, don’t go too far with it. And so where does that
leave me? That leaves me with a question and the question has three words: how, and turn to
Dolly Filartiga. That question of who are today’s pirates is the easiest one. What about the question of legitimacy of the
international law, i.e., law made by who? Law professors who aren’t even American.
I just put it in a way that is really philistine and very, very bad but, but try to translate
that into something more neutral and you’ll understand that a little better. And you’re
not going to be able to deal with it unless you understand it. And that’s just the first
one. I mean, there are cases which, after all, say this company treated those people
so badly over there in Burma, Myanmar, Indochina, wherever you want, it’s slavery. And surely
that’s like piracy. Well, it wasn’t quite that bad. That’s what they say. The company’s
no, no, no. They’re blah, blah, blah. All right. These are matters very often in other
countries for labor courts and specialized tribunals and here they’re thrown into the
Article III judge. Try environmental cases. We have the EPA, you know. Not under the Alien
Tort Statute, no EPA. And what do we do when we have a case of apartheid, and South Africa
says in a brief, “Stay out of this, federal judges. We have the Truth and Reconciliation
Commission and don’t get New York judges involved in our efforts to help the victims
of apartheid. We’re trying to hold our country together, and we want to do it our way.”
Okay, how is that brief supposed to be treated? And call it a problem of universality, but
if we’re going to have a rule about how to treat these victims of torture and don’t
forget Dolly Filartiga, and don’t forget your reaction, which was great, which was
mine. All right. And if we’re going to do that, what about having a universal system
so that other countries also do it, and they do it sometimes in different ways having a
tort, a plaintiff participate in the criminal trial perhaps or maybe this international
penal, you know, the penal court. There are many ways but the principle has to be universal
and that’s why I say, that’s why I say, no supreme court of the world. It’s not
going to exist. So judge, you have to take it into a part, in part 3C of your brain,
go ask that question of what happens with universality. And now I’ve just raised four
questions and at the same time, we don’t want to lose Dolly Filartiga, do we? And if
we don’t want to lose Dolly Filartiga, we better start thinking about the answers to
those questions. And we’re not going to get answers to those questions entirely by
asking a specialist in international law. We’re going to bring that in. And you go
through each part of there and there will be how questions, how questions, which aren’t
raised in the word how but are there implicitly and are there because I’m writing it in
part for you. I don’t know if you’ll read it but I want
you to answer a few of the how questions. And that isn’t a teaching device. It is
because partly maybe with Dolly Filartiga, I don’t want the principle to turn into
some universal principle where every country in the world is starting to prosecute Henry
Kissinger, that’s how it always turns out to be, you see. That’s not my object. And
you talk with a very good point about what’s going on over Basel. What’s going on over
there is that there’s the Basel Commission. What’s the Basel Commission or Basel, whatever
you, too narrow, but the correct pronunciation of that city is where they have it. And what
they have there is they have banks meeting, and they have regulators coming over from
the SCC. And they sit around and they think at the committee what would be a correct rule,
what would be a good rule. And the SCC people find out, and they participate, and they come
back and then they promulgate it. They promulgate it and they say, “This is our rule. Let’s
have notice and comment.” I’m waiting for somebody to say, “Uh-huh, that’s the
rule, all right. You’re making it now, and you want our comment, all right. Hahaha. You
made that rule in Basel, where we had no input whatsoever.” And that’s the question you
raised, and that’s another good one. How, how, and throughout, there are questions.
Of course, we’re in this. Of course, I want people to understand that there is no answer
to the question that we’re in it. Because the only other answer, there is no answer.
We’ve got to solve these problems. But I also want them to see how a generalist judge,
not a specialist, but a generalist and that’s what American judges are for the most part,
generalist. How they see the problems that are coming up. That’s what I can talk about.
I can’t talk about the details because I don’t know them. And I think, it would be
useful, indeed, it would be my dream if what would happen is what Aharon suggests. That
would be fabulous, and we would be, both be, very happy. That’s true. That’s true.
But there we are. Dreams don’t—I’m not that unrealistic. And in the meantime, maybe
we can get people to think about and get a few answers in a generalist way to what I
think of as some fairly important questions.

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