The Supreme Court's growing docket of cases involving international law seems to have left both Congress and the White House with a bad case of the shakes. Between Senator John Cornyn's proposed resolution last month stating that judicial consideration of foreign judgments “threatens the sovereignty of the United States,” and the Justice Department's scramble before the Supreme Court last week to avoid judicial enforcement of treaty obligations Congress willingly ratified, one would think the U.S. justice system is facing imminent attack by marauding members of the French supreme court.
Before Congress sends troops in to purge Justice Anthony Kennedy's chambers of references to all laws étrangères -- and before the administration backs away from compliance with another multilateral treaty -- it is worth asking: What is “foreign” about the Court's recent judgments that seems to pose such an existential threat? For while Congress and the president might reasonably balk at being bound by the penal code of China, much of what the Court now confronts is as much “our law” as anything Congress passed itself.
The public debate about international law these days tends to treat as interchangeable three rather separate kinds of encounters with “foreign” law in U.S. courts. The first involves the courts in interpreting the effect of international treaties signed by the president and ratified by the Senate. That is what faced the Supreme Court last week in Medellin v. Dretke, which presents the question of whether state-court death-penalty sentences may be invalidated because states failed to comply with a U.S. treaty obligation under the Vienna Convention to advise foreign nationals facing prosecution of their right to contact their national consulate. The International Court of Justice (ICJ) -- the United Nations court given jurisdiction under the treaty to issue binding decisions involving the treaty's application -- had ruled 14 to 1 on the question against the United States. But the U.S. Justice Department insisted that there was no need for our Supreme Court to take any action to enforce this right; the president would instruct state courts to review the failures to provide consular notification (leaving unclear what power exactly the president has to instruct state courts to do anything). The next week, the White House announced that the United States was withdrawing from the part of the treaty giving the ICJ jurisdiction over such disputes.
The administration's reaction to parts of the Vienna Convention it no longer likes -- just like its reaction to provisions of the Geneva Conventions it found inconveniently restricting of executive powers of detention and interrogation -- is to imagine treaties as external to U.S. law, beyond the competence of the courts and ignorable at will. But there is no sense in which a treaty that the United States has signed and ratified as law is “foreign” to the United States. The United States proposed the protocol giving the ICJ jurisdiction to decide treaty questions in 1963, and the Senate ratified it (and the rest of the Vienna Convention) in 1969. Under our Constitution's Article VI, treaties are the “law of the land,” just like any act of Congress, and under Article III, the U.S. courts are expressly given jurisdiction to resolve disputes arising under them. The Supreme Court made this clear more than a century ago in a landmark case, The Paquete Habana: “International law is part of our law, and must be ascertained and administered by the courts of justice.” Until we change our law through the institutions set up by our law, we are bound by the rules that we ourselves made.
The second use of foreign law -- judges looking to international practices as a way of helping to interpret particular clauses of the Constitution -- seems even more distressing to some conservatives on Capitol Hill. This was what happened two terms ago in the Supreme Court's decision in Lawrence v. Texas holding state sodomy laws an unconstitutional infringement on due-process liberty interests, and again earlier this term in a decision holding the execution of minors to be “cruel and unusual punishment” in violation of the Eighth Amendment. It was following these decisions that Republicans in Congress moved to bar the federal courts from so much as thinking about foreign judgments in their constitutional decision making. A House resolution offered by Representative Tom Feeney last year sought to bar the consideration of foreign laws in judicial decisions; Senator Cornyn's resolution this year is a companion to that still-unpassed measure. And it was this use that House Judiciary Committee Chairman James Sensenbrenner had in mind in his recent speech before the U.S. Judicial Conference of federal judges, where he argued, “Inappropriate judicial adherence to foreign laws and tribunals threatens American sovereignty, unsettles the separation of powers (presidential and Senate treaty-making authority), and undermines the legitimacy of the judicial process.”
Apart from elevating the judicial aside to a level of influence all out of proportion to its position, legal isolationist critics overlook that in these two areas of U.S. constitutional law -- the scope of the liberty protected by the due-process clause and the question of which punishments are “cruel and unusual” -- constitutional doctrine has long directed the Court to consider the opinion of “civilized” society. Current Francophobia notwithstanding, the U.S. Supreme Court has considered Europe part of civilization for centuries.
Take the Lawrence decision. Justice Kennedy's passing reference in his majority opinion to current European law came while explaining why the Court's decision two decades earlier upholding a criminal sodomy law had been wrong. The earlier case had insisted that “decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.” Rejecting that conclusion as a matter of historical and current fact, the Lawrence Court relied for its holding on our own due-process clause, finding that the liberty protected by the 14th Amendment gives Americans “full right to engage in their conduct without intervention of the government.”
The Court's more recent decision in Roper v. Simmons, striking down the juvenile death penalty as cruel and unusual punishment, is based on an area of doctrine that makes much the same demand, requiring the Court to consider “the evolving standards of decency that mark the progress of a maturing society.” This feature of Eighth Amendment law has long been a target of originalists like Justice Scalia, who would prefer an interpretation allowing that if a practice wasn't cruel in 1789, it isn't cruel today. But the Court has rejected this view for the past half-century, instead looking to the modern customs of “civilized society” to determine whether a punishment is “unusual” or not. Legal isolationists might not like this doctrine, but there is nothing “foreign” about it.
Finally, isolationists have railed against judges looking to the practices of foreign nations as nonbinding examples of how other legal systems have dealt with analogous problems. Justice Stephen Breyer, for example, briefly discussed the laws of Britain and France in expressing his opinion that for the United States, unlike those more “religiously homogeneous” countries, it would be inconsistent with our establishment-clause law to provide public funding for parents to send their children to religious schools. Breyer relates how one distinguished member of Congress asked him to stop this troubling practice -- or, if Breyer really felt compelled to consider foreign practice, that he at least not admit in an opinion that he is considering it.
As even Justice Antonin Scalia would likely acknowledge, such consideration of foreign law (whether in print or in shameful secret) falls far short of importing foreign judgments into U.S. law. Indeed, in Justice Breyer's opinion above, he was invoking foreign law only to explain why and how the United States should proceed differently. More important, the Court has long looked to outside sources to help it understand the real-world consequences of its decisions. From Justice Louis Brandeis' 1908 brief on the impact of long working hours to the amicus brief of military leaders arguing that affirmative action is essential to a well-functioning national defense, the justices have reached for all the insight they can get. Used this way, foreign law is little different from Justice Harry Blackmun's loving, lengthy description of the history of baseball en route to a ruling that baseball remained exempt from standard federal antitrust laws. It is the law taking note of the way things are.
Like the bogeyman critique of “judicial activism,” “foreign law” seems to have become the latest stand-in straw man for those who aim to cast fundamentally political opposition as a principled objection. It is hard not to conclude that vocal opponents of “foreign law” are driven less by any real threat to U.S. legal sovereignty than by the fear that even a conservative judge might embrace a legal rule with which they disagree. But that danger is also long known to the United States; it is the necessary price of the rule of law.
Deborah Pearlstein is director of the U.S. Law & Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights).