Sunday, September 13, 2015

Justice Breyer Sees Value in a Global View of Law

CAMBRIDGE, Mass. — Justice Stephen G. Breyer’s modest study in his home here is nothing like his grand chambers at the Supreme Court. Cluttered and lived in, it bears signs of a restless intellect and a doting grandfather. The bookshelves are stuffed with volumes of law and literature, and a large dollhouse sits on the floor.
Justice Breyer, 77, often comes in last when people are asked to name members of his court, but he has had a remarkable year.
In the Supreme Court term that ended in June, he surprised almost everyone by voting with the majority more often than any other justice. On the term’s last day, he issued a major dissentquestioning the constitutionality of the death penalty. And he has a book coming out, one that will reignite the politically combustible topic of the role foreign law should play in American judicial decisions. He will discuss it on Monday on “The Late Show With Stephen Colbert” on CBS.
Justice Breyer’s home is not far from Harvard Law School, where he taught for many years, and the federal courthouse where he served before joining the Supreme Court in 1994. On a sunny morning last week, he was eager to talk about the book, “The Court and the World: American Law and the New Global Realities.” He particularly wanted to make sure that it was not misunderstood.
Most of the book is a methodical and dispassionate discussion of cases in which justices across the ideological spectrum have considered foreign practices and materials in their opinions. Many of those opinions concerned statutes and treaties, and references to foreign approaches were not especially controversial. But others involved the meaning of the United States Constitution, where the citation of foreign law can raise strong objections.
“I’m giving you a survey from the front,” Justice Breyer said. “Something very important is going on.”
“I hope that by the time you finish this book,” he added, “you will agree with me that the best way to preserve our basic values is not to ignore what goes on elsewhere, but the contrary.”
The book is likely to revive a debate that roiled the court a decade ago when Justice Anthony M. Kennedy cited decisions from foreign and international bodies in major gay rights and death penalty cases. That “evoked strongly adverse political reactions,” Justice Breyer’s book recounted, including calls for impeachment.
On the Supreme Court, too, there were biting responses to the citations. “The basic premise of the court’s argument — that American law should conform to the laws of the rest of the world — ought to be rejected out of hand,” Justice Antonin Scalia wrote in a 2005 dissent. Perhaps as a consequence, references to foreign law in major constitutional cases have been sparse since.
Justice Breyer said last week that in a shrinking and increasingly interconnected world, understanding what is going on abroad is necessary and helpful, whether the topic is national security, free speech, securities regulation or antitrust law. As for citing the decisions of foreign and international tribunals, he said, that issue was a distraction. The decisions were not binding on American courts, he said, but they could be instructive.
 “The argument politically in what I call the froth on the surface,” he said. “It has very little to do with what’s going on.”
“What I’m trying to show is that the whole argument is beside the point,” he added. “The world we’re operating in is one in which by and large everyone believes you have to know something about what’s going on abroad.”
He said he understood why some people disagreed with him. “I think their real motive is to preserve our system, our constitutional values: democracy, human rights, rule of law,” he said. “That’s the correct motive.” He did allow, though, that “it’s crossed my mind that people who don’t like the results in these very highly visible and controversial cases decide to blame the foreign law.”
Justice Breyer spends a fair bit of time abroad. In 2013 and 2014, according to financial disclosure forms, he visited Britain, Canada, France, Luxembourg, Monaco, Norway and SwedenHe was inducted in 2013 as a foreign member of France’s Académie des Sciences Morales et Politiques, one of the five academies of the Institut de France.
He said he found it useful to compare notes with foreign judges. In the book, he noted that some Americans were wary of such interactions, partly because they saw “judges throughout the world as belonging to the same social caste — one sharing generally ‘leftish’ political views.” But he said judges facing similar problems could learn from each other.
On his own court, Justice Breyer was in the majority 92 percent of the time in the last term, four percentage points ahead of the usual leader, Justice Kennedy. That was satisfying, he said. “When you reach a conclusion, and you put words down on the paper, and you’ve written an opinion, of course you’re pleased if others agree,” he said. “I mean, if you didn’t think it was right, why would you write it?”
On the last day of the term, Justice Breyer himself took account of international practices in a dissent that stopped just short of saying the death penalty violates the Eighth Amendment’s ban on cruel and unusual punishment. In 2013, he wrote, only 22 countries carried out executions, and the United States was one of only eight that executed more than 10 people that year.
It was a short passage in a long opinion. “For those who want to ignore it, they can ignore it,” he said last week, adding that foreign practices might be particularly informative in cases concerning the Eighth Amendment. “It uses the word ‘unusual,’ ” he said, “and the founders didn’t say unusual in what context.”
The 46-page dissent, joined by Justice Ruth Bader Ginsburg, concluded with an invitation for fresh consideration of the constitutionality of the death penalty. “I believe it highly likely that the death penalty violates the Eighth Amendment,” Justice Breyer wrote. “At the very least, the court should call for full briefing on the basic question.”
He announced the dissent from the bench, a rare move reserved for major statements. More unusual yet, Justice Scalia offered an apparently impromptu rebuttal. That ended the term on a frayed and sour note. But Justice Breyer said there would be no lasting animosity. “It is true that people remain friends,” he said. “You can’t harbor resentments.”
Two informal conventions at the court help maintain good relations, Justice Breyer said.
“First unwritten rule is that nobody speaks twice until everybody speaks once at the conference,” he said, referring to the private meetings where the justices cast their votes. “Great rule. Everybody feels they’re treated fairly. Second: Tomorrow is another day.”
The book opens with a 2012 argument in a challenge to a 2008 law that authorized interceptions of international communications involving Americans. The court, voting 5 to 4 along ideological lines, rejected the challenge. Justice Samuel A. Alito Jr., writing for the majority, said the plaintiffs — lawyers, reporters and human rights groups — had offered no good reasons to think their communications were subject to surveillance.
In dissent, Justice Breyer said there were plenty of reasons to think the government was engaged in mass surveillance. Seven months later, the revelations of Edward J. Snowden, a former National Security Agency contractor, seemed to vindicate Justice Breyer’s position. Asked about that last week, he would not bite.
He did say the methods used in Britain, Israel and Spain to combat terrorism should instruct American judges. “How did their system work out?” he asked. “It doesn’t hurt to find out the answer to that. Why? Because the answer to that will help us think about our system.”

5 comments:

  1. …I hope that by the time you finish this book,” he added, “you will agree with me that the best way to preserve our basic values is not to ignore what goes on elsewhere, but the contrary…”

    In other words let us not lead but follow. That is NOT what we are about!

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  2. He will discuss it on Monday on “The Late Show With Stephen Colbert” on CBS.

    How pathetic. The late show to air his opinion. A justice of the SCOTUS.

    The perfect example of term limits for SCOTUS.

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    Replies
    1. How in the Hell does that solve anything - it will be worse than it already is. The fact of the matter is that any SCJ that advocates for the UN or the World Court and takes that into advisement when judging a case should be tried for treason.

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  3. Lou
    I somehow doubt that you need reasons to limit SCOTUS membership terms. The very nature of the appointment methodology should be reason enough.
    As for the opinion that there is a good reason to compare and contrast US jurisprudence and the laws of other nations, I am surprised this needed to be stated by the Justice.
    As part of the very fabric of your legal procedures, so much is derived from British precedents. So much is taken from English Common law and so much is borrowed from the thinking of John Locke and others who helped inspire the rebellion.

    I am sure no one wants to begin using precedents and case law from the British courts in order to validate US judicial thinking; however the open minded approach when amendments are considered necessary may produce better law, surely this is a laudable aim.

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  4. Sharia law, coming soon to a community near you.

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