HARLAN COHEN SUPREMACY AND DIPLOMACY 11 28 2005 12 14 20 PM SUPREMACY AND DIPLOMACY THE INTERNATIONAL LAW OF THE U S SUPREME COURT HARLAN GRANT COHEN In 2003 2004 a Presidential campaign year dominated by debates about international affairs and international law the U S Supreme Court took an unusual number of cases of international import The Court considered the Alien Tort Claims Act and the future of human rights suits in U S courts the applicability of the Foreign Sovereign Immunity Act to claims involving Nazi stolen artwork the applicability of American antitrust law to foreign anticompetitive activity and the legality of the Guantanamo detentions A great deal of ink has been spilled analyzing the individual impacts of each of these cases What has been less considered is how these cases fit together and what together these cases can tell us about the Supreme Court s nascent theories of international law Supremacy and Diplomacy The International Law of the U S Supreme Court examines the international theory of the U S Supreme Court Teasing out the various Justices views from the 2003 2004 Term s international cases the Article examines the Court s understanding of international law and the Court s role in the world It looks at the varying success of particular parties in these cases e g the U S government foreign governments and human rights activists as well as how the Court approaches different fact patterns The article concludes that the Court has reached an unstable ad hoc compromise between redressing international wrongs and protecting American sovereignty It argues that the Court s fractured discourse requires both the U S government and international law advocates to take an active role in shaping the Court s international law theories The reaction to the Supreme Court s opinion in Roper v Simmons 1 in which Justice Anthony Kennedy referenced both foreign and international law in holding the execution of minors unconstitutional was swift and strong The halls of Congress seemed to shudder with anger as congressmen and senators rushed to react In a press release issued March Furman Fellow New York University School of Law J D New York University School of Law 2003 M A History Yale University 2000 B A Yale University 1998 I must first thank Daniel Reich and Andrew Rosen for taking the time to read initial drafts of this Article Their feedback was invaluable Thank you also to Barry Friedman and Benedict Kingsbury for very helpful suggestions on how to improve the Article I am further indebted to Andrew C Rearick and the staff of the Berkeley Journal of International Law for their work in editing the Article and preparing it for publication Most of all thank you to Shirlee Tevet Cohen my greatest supporter critic and publicist who thankfully understands the difference between writing and being a bum 1 125 S Ct 1183 2005 101 HARLAN COHEN SUPREMACY AND DIPLOMACY 11 28 2005 12 14 20 PM 102 BERKELEY JOURNAL OF INTERNATIONAL LAW FORTHCOMING FALL 2005 2 2005 one day after the Roper opinion was published Representative Tom C Feeney R FL called for the removal of international influence in the United States court system 2 The Supreme Court has insulted the Constitution by overturning its own precedent to appease contemporary foreign laws social trends and attitudes 3 Feeney fumed In the Senate Senator John Cornyn R TX r o se to express concern over a trend that may be developing in our courts a trend regarding the potential influence of foreign government and foreign courts in the application and enforcement of U S law 4 In his view the Court s internationalist tendencies were endangering American sovereignty Step by step with every case the American people may be losing their ability to determine what their criminal laws shall be losing control to the control of foreign courts and foreign governments And if this can happen with criminal law it can also spread to other areas of our government and of sovereignty How about economic policy Or foreign policy Or our decisions about security and military strategy 5 Echoing these thoughts an editorial in the Washington Times observed that the Court s logic is the product of a movement that favors international law as an end in itself and that it is Congress prerogative not the Supreme Court s to decide whether the United States will accede to a given treaty or body of international law 6 Roper s critics were not alone in observing an internationalist trend in the Court s opinion 7 Harold Hongju Koh Dean of Yale Law School and one of the strongest advocates of the use of foreign law and international law sources observed that Kennedy and Sandra Day O Connor have joined Stephen Breyer John Paul Stevens Ruth Bader Ginsburg and David Souter in the transnationalist camp of the court 8 and called Republicansponsored legislation prohibiting judges from citing foreign law in their 2 Supreme Court Ruling Reiterates Importance of Reaffirnation of American Independence Resolution U S FED NEWS Mar 2 2005 3 Id Representative Bob Goodlatte R VA agreed I t is high time that these justices be reminded that their duty is to interpret the Constitution not to impose the will of foreign entities on the people of the United States Id 4 Sen Cornyn Introduces Legislation to Keep Foreign Influence Out of U S Courts U S FED NEWS Mar 21 2005 5 Id see also Budget Hearing Justices defend judiciary against Hill NAT L L J Apr 18 2005 at P14 quoting Representative Todd Tiahrt R Kan express ing concern about Roper v Simmons and saying that i nvoking international law went beyond the rule of law 6 Other Nations Laws THE WASHINGTON TIMES Mar 13 2005 at B02 7 Anupam Chander a professor of international law at the University of California Davis wrote of Justice Kennedy the Internationalist and observed that c onsidered alongside the Court s embrace of international law in Sosa v Alvarez Machain Roper marks a strong transnationalist turn in the court s jurisprudence Anupam Chander Justice Kennedy the Internationalist Mar 1 2005 http www chander com 2005 03 justice kennedy html 8 Harris Meyer Kennedy Wades Into International Waters THE LEGAL INTELLEGENCER May 18 2005 at 4 HARLAN COHEN SUPREMACY AND DIPLOMACY 11 28 2005 12 14 20 PM SUPREMACY AND DIPLOMACY 103 decisions outrageously ridiculous 9 Behind the rancorous war of words lay an assumption that for better or for worse the Court had in fact taken an internationalist or transnationalist turn and was increasingly willing
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