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 Sweden. He 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.”
…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…”
ReplyDeleteIn other words let us not lead but follow. That is NOT what we are about!
He will discuss it on Monday on “The Late Show With Stephen Colbert” on CBS.
ReplyDeleteHow pathetic. The late show to air his opinion. A justice of the SCOTUS.
The perfect example of term limits for SCOTUS.
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.
DeleteLou
ReplyDeleteI 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.
Sharia law, coming soon to a community near you.
ReplyDelete