Justice Stephen Breyer has been on the Supreme Court for 21 years, and his tenure has been as notable for what he has done off the bench as on the bench. Assuming the role of the Court’s chief public liberal theorist, Justice Breyer has provided the theoretical contrast from the left to Justice Antonin Scalia’s public theorizing on the right. Justice Breyer’s new book, The Court and the World, is his latest chapter in these theoretical battles, as he defends the Court’s engagement with the rest of the world.
Justice Breyer’s book is compelling in its substance because it is clear in its modesty. He argues that the Court should engage with the rest of the world because it makes good practical sense and because the Court has always done so.
That said, there is a problem with this book. The problem is not, however, that it’s wrong. The problem is, it’s the right book at the wrong time. The war over how much our legal system should engage with the rest of the world was fought in the 2000s—and Justice Breyer’s side lost many parts of that war. His book’s limited arguments are indicative of how much that war was lost, and therefore how limited are the issues still being debated.
Justice Breyer has long argued that the Court should take a pragmatic approach to its judicial responsibilities, considering not just the formalities of text and precedent, but the practicalities of which decisions would work better in practice. The Court and the World follows a similar approach: the author considers three separate ways in which the world intersects with the Court, and for each suggests limited and practical engagement.
First, the Court can consider sentiments in the rest of the world as a source of persuasive authority. The experiences of the rest of the world in these contexts do not bind the Court, but they can cast what Justice Breyer has elsewhere called “an empirical light” on the issues the Court faces. The book discusses this in the greatest detail in the national security context, in which other countries are “engaged in similar projects to those before our Court of balancing security and liberty.”
Second, Justice Breyer argues that the Court sometimes must consider sentiments from the rest of the world. Congress sometimes enacts statutes that are meant to have a global reach, and the Court must consider events overseas in interpreting and applying those statutes. We live in an increasingly economically interdependent world, for instance, and Congress enacts statutes that are meant to regulate commercial activities transpiring overseas. The Court is also obliged to consider sentiments from the rest of the world when interpreting treaties that the United States is a party to and that therefore bind American courts. If the Court is trying to interpret a treaty to make it work for all parties to that treaty, it might make good practical sense to see how other countries have understood that treaty.
Finally, Justice Breyer argues that the Court engages with the rest of the world by participating in what he calls “judicial diplomacy.” This part of the book is the most insightful and the most original. His discussion of interactions with counterparts from overseas is the most comprehensive public discussion of judicial diplomacy by a justice that I have seen.
Justice Breyer has appeared everywhere to discuss the book, most notably appearing on The Late Show with Stephen Colbert. The problem is that these efforts to communicate his arguments to the larger public are too late. These appearances would have been helpful when the war on foreign law was being fought in the 2000s, not when many parts of that war have already been decided years later in 2015.
The Court has considered foreign law relevant to performing its judicial responsibilities for its entire history. The public, though, only rarely pays attention to these more jurisprudential issues related to how the Court behaves. These moments of larger public attention are crucial in shaping how our legal system behaves. The moment when there was more attention paid to foreign law was the period between (at least) 2003 and 2005.
In June 2003, the Supreme Court decided its first gay rights case of the 21st century in Lawrence v. Texas. The Court invalidated a Texas statute criminalizing same-sex sodomy, and briefly looked to what other countries were doing on this issue. In March 2005, the Court decided that it would be unconstitutional to execute people for crimes committed while they were juveniles in Roper v. Simmons. The Court again considered foreign law, but that time in a more comprehensive and detailed fashion.
These decisions generated substantial amounts of public discussion about the role of foreign law in the Court. Conservatives publicly and aggressively articulated their more critical perspectives on the judicial use of foreign law. Justice Scalia went public with his criticism, speaking, for instance, at the American Enterprise Institute. Congressional hearings (full disclosure: I participated in some of these hearings) debated these issues, and Republicans in Congress supported the “Reaffirmation of American Independence” Resolution prohibiting most judicial uses of foreign law. Some Republicans argued that citing foreign law could be an impeachable offense. The justices knew of these political threats, as Justice Breyer even cites them in his book many years later.
Any war fought by just one side will lead to an easy and obvious victory for that side. During the time when conservatives were fighting the battle against foreign law, there was not an equal and opposite public defense of foreign law on the other side. House Democrats defended the utility of foreign law during congressional hearings, but not publicly other than that. Justice Breyer and other justices appeared publicly a few times to defend the use of foreign law, but usually in more obscure academic settings. To his substantial credit, Justice Breyer was at least fighting some part of this jurisprudential battle at the time, as he published an important book in 2005 articulating his theory of how to interpret the Constitution.
As early as 2005, signs of a conservative victory on this issue were everywhere. Foreign law did not play any meaningful role in the Court’s decision on the Affordable Care Act in 2012. Nor did foreign law play any meaningful role in the Court’s decisions on gay marriage in 2013 and 2015.
The signs of a conservative victory on this issue are even apparent in Justice Breyer’s book, which focuses mostly on uncontroversial uses of foreign law that were almost universally supported then and are broadly popular now as well. His book barely and only very generally addresses some of the more controversial positions favoring the use of foreign law in the Court that were being debated in the 2000s.
Consider several examples. There is broad agreement that if Congress decides to make a statute global in its reach, the Court should interpret it that way. There is broad agreement that treaties should be interpreted by considering what other countries that are a party to the treaty are doing. Indeed, during the middle of the battles over Lawrence and Roper, Justice Scalia wrote a dissenting opinion arguing that the Court needed to give even more “consideration to how the courts of our treaty partners have resolved the legal issues before us.”
The most controversial use of foreign law remains when the Court considers it in interpreting the generalities of the American Constitution. In considering whether something constitutes cruel and unusual punishment under the Eighth Amendment, for instance, should the Court consider how common a punishment is in the rest of the world? Justice Breyer has much less substantial things to say about this. Indeed, the part of the book in which he engages with this issue the most is entitled the “postscript.”
When Justice Breyer does briefly engage with these issues, he does not address in detail the full range of considerations that would be involved in assessing whether the Court should glance overseas. How does Justice Breyer determine which countries are most relevant in assessing foreign experience? How does foreign experience fit within existing American constitutional doctrine? And what is Justice Breyer’s response to the concern of Justice Scalia and others that considering foreign experience violates our commitment to American self-government?
The American people have started to debate once again how much we should engage with the rest of the world. Republican presidential candidates have suggested engaging more with the rest of the world, and Hillary Clinton has as well. One thing to watch in the years to come is whether this debate will trickle into our legal system, and whether it will ask us to consider once again whether our legal system should engage even more with foreign legal experiences. If that debate does resurface, Justice Breyer’s book will be at the center of the debate, but it might be too late to ensure that all parts of the debate he is participating in will be revisited.