Alone among the eight Supreme Court justices who have been married, Stephen G. Breyer chose a spouse from beyond U.S. borders. Breyer has been wed since 1967 to the former Joanna Hare, the daughter of a British viscount and a psychologist who now practices at the Dana-Farber Cancer Institute in Boston.
Fittingly, Breyer is also the most internationalist-minded of the current nine, including the never-married Elena Kagan. Yes, almost all of them travel abroad from time to time: Anthony Kennedy teaches every year in Salzburg, Austria; John Roberts spent part of the past two summers in distant isles: Malta in 2014, Japan in 2015. But Breyer is the only one who claims fluency in a non-native language: French.
Breyer has displayed his internationalist sensibilities in meetings at home or abroad with foreign judges and legal officials, in his writings, and in his judicial opinions. Now, Breyer has set out his views on the importance of international and foreign law in his new book being published this week, The Court and the World: American Law and the New Global Realities. And Breyer does not back away from explicitly endorsing the controversial use of international and foreign law — he calls it “cross-referencing” — in U.S. judicial decisions.
The subtitle states the thesis. In Breyer’s view, it is not merely desirable but inevitable for U.S. courts, including his, to learn about and take growing cognizance of foreign and international law. The “new global reality” is that the world is a smaller and more interdependent place in the 21st century than ever before.
Breyer notes that U.S. companies and U.S. consumers can use their computers to enter into transnational dealings without ever leaving their offices or homes. And, as he illustrates from the Supreme Court’s docket in recent years, some of those dealings lead to legal disputes with thorny issues about how to apply U.S. law against the backdrop of law from other countries.
Citations to foreign and international law in Supreme Court decisions are by no means new. Justice Byron R. White referenced foreign law in the 1986 decision upholding state anti-sodomy laws; Anthony M. Kennedy cited the European Court of Human Rights in the 2003 decision ruling such laws unconstitutional.
White cited practices in other countries in successive decisions in 1977 and 1982 that ruled out the death penalty for rape or felony murder. But Kennedy’s citation to foreign law in the sodomy decision and in his later opinion to spare juvenile offenders from the death penalty touched a nerve among political and legal conservatives.
On the court, the conservative justice Antonin Scalia sneers at the practice in his opinions and in public speeches. Foreign laws can “never, never be relevant to the meaning of the U.S. Constitution,” Scalia declared in a luncheon speech at George Mason University School of Law on May 29. “Who cares?” Scalia added. “We have our laws; they have theirs.”
Breyer begins with cases that require an understanding of foreign law in order to apply U.S. law. As one example, he cites the 2004 decision, over his lone dissent, that a U.S. company could obtain a court order for discovery of evidence introduced in an antitrust proceeding before the European Commission. The decision in Intel Corp. v. Advanced Micro Devices, Inc. turned on whether the European Commission was akin to a judicial tribunal, as the majority believed, or a prosecuting office, as Breyer argued.
With cases such as that one as background, Breyer eventually acknowledges the proposals introduced in Congress in recent years to prohibit federal courts from citing foreign law in their decisions. Breyer recalls the somewhat analogous effort by Sen. John Bricker in the 1950s to limit the law-making effect of treaties signed and ratified by the United States. The so-called Bricker Amendments were defeated, and the more recent proposals also failed to advance.
Breyer summarizes the critics’ arguments. The critics may fear that U.S. judges will base decisions not on legal analysis but on “nose-counting” among other countries. The critics view use of foreign law as an infringement of U.S. sovereignty and as an affiliation with the “leftish” views of the worldwide judicial caste.
Having acknowledged those arguments, however, Breyer rejects them. Judges worldwide find themselves facing similar problems, Breyer says, and U.S. judges may learn from reading the decisions of foreign judges on similar issues. The practice is not new, he emphasizes, but dates back to such great justices as John Marshall. And, in any event, the court’s work makes it impossible to sustain “the sort of hermetically sealed legal environment” that the critics appear to envision.
Breyer sees a further benefit: the role that U.S. judges as diplomats can play in spreading principles of U.S. law worldwide. He and other justices have met with judges from a long list of countries, here or abroad, to discuss common issues. Behind those meetings lies the hope of spreading such principles as due process, habeas corpus, and the independence of the judiciary.
“The enterprise is not without setbacks,” Breyer writes in conclusion. “But the effort is worthwhile.” The rule of law, he says, is an essential tool to meet the global challenges of the 21st century. U.S. judges and citizens alike, he says, should work at meeting those challenges together.
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