In his book, The Court and the World: American Law and the New Global Realities (Knopf, 2015), Justice Stephen Breyer examines the ways in which foreign law and circumstances impact the Supreme Court. Many of Justice Breyer’s critics often disapprove of the Justice’s global outlook. In writing this book, Justice Breyer aims, in part, to put his critics’ anxieties about national sovereignty “in perspective.” So, what is the perspective of Justice Breyer?
Justice Breyer defines the Court and the World broadly, dividing the book into four categories: Part I examines how the Court can effectively protect basic liberties in the face of security threats; Part II focuses on statutory interpretation and asks: Can American statutes be understood to open the doors of American courts to foreign victims of human rights abuses? And what is the geographical reach of commercial statutes?; Part III considers how the Court interprets treaties that concern unfamiliar subjects; and Part IV looks at the extent to which exchanges between judges and lawyers of different nations help judges reach better decisions.
Justice Breyer backs up his main points with copious and detailed examples, making this book a valuable, if sometimes dry, resource. In fact, a casual book reviewer might be inclined to crack open a beer (Lagunitas … Born Yesterday… Fresh. Hoppy. Invigorating. However, this is a book review, not a beer review!) to get through the last 100 or so pages.
In Part I, there is an interesting, if somewhat long-winded, discussion of President Truman’s seizure of the steel mills. The seizure was justified under the belief that a steelworkers strike and a concomitant stoppage of steel production would imperil the nation, which was at the time engaged in a conflict in Korea. Long story short: the Supreme Court, by 6 to 3, found that Truman’s seizures violated the Constitution. This decision resulted in Justice Jackson’s well known concurrence dividing presidential action into three categories: (1) when the President has express or implied authorization of Congress; (2) when the President acts in absence of either a Congressional grant or denial of authority; and (3) when the President takes measures incompatible with the express or implied will of Congress. But now I am getting long-winded. Ultimately the real reason for Justice Breyer to include this discussion in his book is to show that the Court’s decision here necessarily had international repercussions and is but one example of the Court colliding with the World.
In Part II, Justice Breyer considers the Court’s role in both regulating interstate commerce and in determining the reach of the Alien Tort Statute (ATS). In both instances, American statutory interpretation has global consequences.
Here Justice Breyer also visits the issue of comity (no, not comedy, alas!) which the Justice sums up thusly: because it is reasonable to assume Congress would like to avoid international conflicts among the laws of nations where possible, the Court construes ambiguous statutes to avoid unreasonable interference with another nation’s sovereignty.
In Part III, Justice Breyer points out that the U.S. participates in over 400 functioning international organizations. While arbitration case law developed in labor law conflicts, the Court has recently been asked to consider it in regards to arbitration created by treaties among sovereign nations. This presents difficult questions for the Court: how can courts exercise judicial review of arbitral decisions to ensure that awards are fair and consistent with domestic laws, without undermining the efficiency and neutrality of the arbitral system? To what extent does the Constitution permit the U.S. to delegate legislative or adjudicative powers to international bodies created by treaties? Although there are not clear answers to these questions, Justice Breyer considers these questions carefully, using case law, jurisprudence, and reliance on technical experts.
In wrapping up his discussion on the new global realities of the Court, in Part IV, Justice Breyer suggests that dialogue with members of foreign judiciaries can benefit the American judiciary. Justice Breyer has been particularly affected by the legal concept of proportionality which is utilized in European courts. He believes that the First Amendment may be better served by applying proportionality than through the three categories of scrutiny regularly applied by judges to First Amendment cases. As always, Justice Breyer backs up his claim with cases, specific examples, and insightful explanations (for pages and pages and pages). Justice Breyer believes that cross-national jurisprudential dialogue advances the rule of law.
Despite the occasionally protracted analyses, Justice Breyer succeeds in making the topic of the Court and the World easily approachable and understood. However, like people (according to Ralph Waldo Emerson) and reality (according to Lily Tomlin) and 3 Floyds Dark Lord, this is a book perhaps better enjoyed in small doses. Whether or not Justice Breyer succeeds in putting his critics’ fears in perspective, it is clear in reading this book that Justice Breyer is a well-informed, intelligent and insightful member of the Court who cares deeply about his profession, the Constitution, and the rule of law.
While summing up the Court’s consideration of the Sherman Antitrust Act in Part II, Justice Breyer states: “A more complicated analysis for a more complicated world .” The fact that the Court must engage in more complicated analyses is of particular import to librarians. Throughout The Court and the World, Justice Breyer emphasizes that a particular institutional challenge confronting the Court as it collides with the World is the demand for specialized knowledge. In order to fully appreciate and understand international cases, the Court increasingly relies on those with technical expertise. As information professionals within the legal profession, we must be ready to confront the World as well.