The American public needs to understand what the “international” part of the Supreme Court’s work actually means—and what it does not mean. In particular, the frequent presence of foreign-related issues in the court’s cases has little or nothing to do with the current political debate about whether American courts, including the Supreme Court, should refer in their opinions to decisions of foreign courts. Judicial references to foreign law and practices do not reflect the ideologies of justices—rather they reflect a world in which cross-boundary travel, marriage, commerce, crime, security needs and environmental impacts have become prevalent.(You can buy the book here.)
In the multipolar, mutually interdependent world, the best way to advance the values that the Founders set forth—democracy, human rights and widespread commerce—is to understand, to take account of, and sometimes to learn from, both legal and relevant nonlegal practices that take place beyond our shores.
September 15, 2015
"In my new book, 'The Court and the World,' I describe how global interdependence increasingly is changing the work of the Supreme Court."
In The Wall Street Journal, Stephen Breyer explains his new book. (Nonsubscribers can get to the full page by Googling some of the text.) Excerpt:
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33 comments:
So much for "The Supreme Law of the Land"
I thought Breyer's authority flowed from the U.S. Constitution. Silly me.
Is it really possible that Breyer doesn't understand that being different was a big part of the point? We don't look to the rest of the world to answer constitutional questions quite explicitly because the rest of the world doesn't measure up. They are not the standard by which we are willing to be judged.
A multi-polar, multi-interdependent world?
You have to go to Harvard to write that type of tripe? Steve, let me break the news to you - we want want the International "community" (whatever that is) to be more like America, not the other way around.
"the best way to advance the values that the Founders set forth"
Pretty sure that's not their job. Their job is to enforce the laws (constitutional or statutory) as they are written. If you think those laws don't advance the founder's values* enough, great, but that's the legislature's job.
*If they valued it so much why didn't they write it down? Perhaps all those amendments are there for a reason.
Progressives continue to take over
"sometimes to learn from, both legal and relevant nonlegal practices that take place beyond our shores"
Like EU free speech law, Chinese capital punishment law, Ugandan law on SSM, Russian contract law -- that kind of learning?
You don't just mean "learning" in the sense of cherry-picking stuff you like to confirm stuff you already believe, giving your own prejudice a cosmopolitan patina, do you, Steve?
I have a new book out. It's called "Stephen Breyer is an Asshole." It's about how Stephen Breyer is an asshole.
The "Founders" hammered out a compromise that they thought they all could live with - if just barely on some points.
I should have said, "... live with for a while, until someone can think of something better."
They left a lot of details a bit sketchy, hoping that tempers would settle, and ways to compromise further would be found.
Exactly, Sebastian! I bet he doesn't mean to learn things like drug laws from Bali and Singapore (hanging offense!).
Sebastian said...You don't just mean "learning" in the sense of cherry-picking stuff you like to confirm stuff you already believe, giving your own prejudice a cosmopolitan patina, do you, Steve?
Quite right! There's a lot of international law out there. You can bet when a justice looks to it, they are looking for something particular, something that says what they already want to say but want somebody else to say it.
Proving once again the accuracy of Orwell's aphorism that "There are some things that only an intellectual could POSSIBLY believe in-no ordinary person could ever BE such a fool."
American law schools clearly need to start requiring an American History course as part of the curriculum.
Good God.
Standard issue disingenuousness, from someone who thinks that the rest of us are too stupid to see through his deceptions. Breyer describes some rather arcane issues, such as copyright disputes, that may involve consideration of treaties and the determination of which law to apply, and implies that Americans are too stupid to understand that courts must frequently refer to "foreign" law in disputes of this nature. He utterly ignores the fact that no one is complaining about that: what they are complaining about is using rulings from the Supreme Court of Zimbabwe (an example, but not one I made up) to interpret the Bill of Rights.
Orin Kerr (I think it was) had a good piece a few years back which pretty much punctured Breyer's pretense. Imagine how Breyer (and Althouse's lawprof friends) would squeal if a Court wrote an opinion along the following lines: 1. In determining what is "cruel and unusual," the Court must consult the strongest traditions and deepest moral intuitions of the American people (so far, the usual platitudes). 2. There is no book more important to the history of America or the moral beliefs of Americans than the Bible (incontestably true, thought not the sort of thing Breyer would say). 3. Therefore, in determining what is cruel and unusual, we examine what the Bible says about capital punishment (let the screaming start).
Ah, yes. the old "say 'it's not about ideology!', then immediately lay out the ideology that it's about" ploy.
@tim maguire/
Of course you realize, dont you, that there is NO SUCH THING as "international law" but only those arrangements that all parties find it convenient to adhere to. Not only is there no enforcement mechanism except for that of the strong over the weak (who is going to haul Putin before the Int Tribunal at the Hague?) but the fact that all parties find it convenient to look the other way rather than deal with 'sticky wickets" e.g., the UN, tho technically still at war with N. Korea, in some 50 yrs has never found itself able to decide whether the Chinese troops who fought on the NORKs side were true "volunteers" not under the control of China or if they were an extension of the Chinese government. Of course at this late date if they stated the truth of the matter it would be highly embarrasing as the CHICOMS are now a member of the UN and the Security Council. Such a finding would embarrassingly mean that the UN would technically be at war with itself. Oh well, so much for int law..
Or take the fact that ballistic missile technology has been around since the launch of Sputnick in 1957. So riddle me this: Is that launch of a ballistic missile over the airspace of a nation (which the NORKS have done to Japan in test launches)a violation of its "territorial integrity even if the flight takes place in space? Funny, the International "community" of "jurists" has yet to provide an answer in over 60 years. I wonder how the American public would view a Russian ballistic missile submarine off the East Coast launching an ICBM which traversed the length of the continent and landed in the waters off the West Coast. I wonder what Breyer would say..Ya think both parties would agree? Ya think?
"It's been said that the two greatest threats to the continuation of constitutional, republican government in the United States are (1) that increasingly important decisions made by unelected bureaucrats, and (2) the Supreme Court's expansive view of of its authority combined with a lack of effective checks on the Court's power.
"Justice Breyer, assuming there is some truth in this, what limits would you place on the federal bureaucracy and on the Court, and how would these limits be enforced? And, if there are no limits on either (other than those the bureaucrats and justices place on themselves), do Americans still live in a republic or has that republican form of government been irrevocably lost?"
"Oh, nevermind. How can we help you sell your book?"
The Supreme Court is not supposed to be makers of law. They are supposed to follow the constitution. How is the interpretation of law somehow other than that? Why would it matter what happens elsewhere? Thats not what the Supreme Court is supposed to worry about. Legislators can worry about that.
The world is bi-polar
Hawking your book on a late night show is far more damaging than any camera at the Supreme Court.
If the Republicans had stones they would impeach and remove him just for this as a caution to the others.
Virgil, I understand that there is no such thing as international law in the sense in which you are using the term. There are, however, other uses.
Rule of Law. Ha!
Let me jump on the Sebastian band wagon. Well phrased, sir.
I thought Breyer's authority flowed from the U.S. Constitution. Silly me.
Is his statement anything more than a justification for cherry-picking laws he likes? Could, say, Scalia cherry pick abortion laws from any other industrialized country on Earth besides us?
Of course you realize, dont you, that there is NO SUCH THING as "international law" but only those arrangements that all parties find it convenient to adhere to.
True. The Kellogg-Briand Pact of 1928 outlawed war to resolve disputes. It didn't work too well.
The Founders embraced "individual" rights.
"Human" rights are often described as collective rights, i.e., state-granted privileges to one group or another to obtain benefits from others.
Of such small changes are great leaps forward made.
Steven Breyer is insane and needs to be removed from the court. Along with all the other liberals. Liberalism is literally insane.
"Is his statement anything more than a justification for cherry-picking laws he likes?"
Nope. I think this is crap. The Constitution put him in his position and now he says he can just blow it off.
Grounds for impeachment.
Bullshit. Utter bullshit. He can become a judge of the world since that's important to him.
The scary thing is not that Breyer has lost his mind. The scary thing is that so many others haven't noticed and actually think this crap makes sense.
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