Noah Feldman is Felix Frankfurter Professor of Law at Harvard University and author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices.”
Justice Stephen Breyer is an internationalist. He speaks excellent French and holds one of the foreigners’ seats on the French Academy of Moral and Political Sciences. He studied at Oxford as a Marshall scholar, married an Englishwoman and delights in discussing foreign and international law in oral arguments and citing it in opinions.
His new book reflects his international interests but also his view of how his job has changed over two decades on the court. “The Court and the World” isn’t a book of generalities or abstract legal theory. It’s a serious, insightful work, complete with a concrete, highly detailed analysis of scores of cases decided by his court and by others around the world. All are arrayed to make a central, if controversial, point: that in a globalizing world, the Supreme Court and its justices must, and can, learn a great deal about foreign and international legal systems — and apply it to their decisions.
The book’s origins can be traced to a much-discussed debate between Breyer and his colleague Justice Antonin Scalia that took place at American University in 2005. Breyer’s role was to defend the judicial use of foreign sources against Scalia’s characteristically acerbic, brilliant and dismissive assault. In the book’s final section, “The Judge as Diplomat,” Breyer takes up that thread and says that he’s learned a lot from encounters with foreign judges. Indeed, he argues at some length that the court’s First Amendment jurisprudence should be changed to incorporate the European legal principle of “proportionality,” which he explains as the idea that a court should ask whether a given government limitation on a basic right is proportionate to the goal it’s intended to achieve.
In Breyer’s unabashedly pragmatic view, the court inevitably must balance interests when it decides free-speech cases. Analyzing proportionality, he says, would improve the balancing act by making it more case-specific. He gives the striking — and strikingly provocative — example of a 2010 case called Holder v. Humanitarian Law Project, which has turned out to be a watershed in the free-speech jurisprudence of the Roberts court. In that 5-4 decision, over Breyer’s dissent, the court held that the statute banning material support for terrorism could be applied to block U.S. nongovernmental organizations from advising foreign groups on the State Department’s terrorism list to engage in peaceful advocacy.
The opinion marked the first time in the post-McCarthy era that the court upheld a ban on peaceful advocacy by Americans. The majority said the law served the compelling interest of fighting terrorism and was narrowly tailored to that end because terrorist groups don’t distinguish between peaceful and violent means to achieve their ends. Breyer argues in the book that considering the proportional effect of the law on the speakers would have changed the outcome by focusing on the effects in the specific circumstances. This argument would be red meat to Scalia, who considers the rule of law a law of rules, and dislikes case-by-case pragmatism. But it nicely illustrates Breyer’s overarching ideology, which favors anti-ideological pragmatism in all things. This approach is a product of Breyer’s personal disposition as well as his formative experiences as an academic studying the practically oriented areas of regulation and antitrust law. It pervades his body of opinions as well as his published work.
Readers should be forewarned that for reasons of his own — no doubt pragmatic — Breyer saves this juicy stuff for the end of the book. The first four parts out of five are devoted to showing how today’s justices have no choice but to consider international affairs and international law.
Of these, the first part will be of the most general interest, because it discusses the court’s post- 9/11 cases involving Guantanamo and the right to habeas corpus. Breyer offers an overview of the court’s attitude to presidential power, describing the two extremes of a president who has a blank check and an “entrammeled executive.” Breyer makes the important point that the court has gradually moved in the direction of greater supervision of the executive. But he also, characteristically, embraces a middle ground of “case-by-case” review. That review, he says, means the court will have to learn about and understand technical matters of national security to get the cases right. He’s confident it can do so.
Critics such as Scalia would no doubt reply, with some justification, that most judges know little or nothing about national security and will probably get things wrong if they think they do. Breyer’s combination of technocratic faith and broad ability encourages him to believe that any smart person can learn to handle hard yet unfamiliar problems. The reality is that many federal judges lack his skills or inclination.
In the book’s middle sections, Breyer discusses the interpretation of U.S. statutes that reach abroad and of international treaties. To his credit, he analyzes the many highly technical cases in non-technical language — no simple feat. But the subject matter is still very much that of the technical lawyer. His argument is that such laws and treaties call for harmonizing U.S. laws and interpretations with laws elsewhere.
If the goal of the courts is to make the United States a responsible, rule-following actor in the international system, Breyer is surely correct. The rule of law internationally can only benefit, as he says.
If, however, the court’s true goal is to effectuate the will of the American people as found in laws and treaties, it’s less certain that the court should pursue international uniformity. The public might want the United States to follow treaties and defer to international practice when convenient, and deviate when it serves the national interest. Exercising the superpower’s prerogative might be arrogant or unwise. But it’s certainly American.
By Stephen Breyer
Knopf. 382 pp. $27.95