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Stephen Breyer

It is an unfortunate truism that the longer one remains in the legal profession, the less educated he becomes. The law, as the saying goes, is a jealous mistress: She does not permit solicitors to invest time in rival passions—e.g., philosophy, history, and literature—let alone cultivate the niceties and nuances of expression that distinguish the lettered from the unlettered. It is tough to read Dickens and Henry James when you have got billable hours to meet, and slogging through appellate cases rewards only a rudimentary, distilled understanding of principles that great minds have reworked for centuries. There is simply not enough time for punctual judges and practicing attorneys to master biblical hermeneutics or study Shakespeare, and developing the whole person—learning to live well and wisely—falls far beyond the scope of legal practice and proficiency.

Justice Stephen Breyer was off to a promising start to an educated life when he studied philosophy at Stanford University and then attended Oxford University as a Marshall Scholar. He graduated from Harvard Law School in 1964 and began his legal career as a clerk to Justice Arthur J. Goldberg of the United States Supreme Court. In 1967 Breyer entered the academy—first Harvard Law School and later Harvard’s Kennedy School of Government—where he focused on administrative law. His scholarship was neither groundbreaking nor exceptional, but it was sufficient to secure him a full professorship and to demonstrate a superior understanding of an unpopular subject. Breyer was, at this time, becoming the welcome exception: a literate lawyer.

Then things went wrong, gradually and by slow degrees. Breyer took the bench on the United States Court of Appeals for the First Circuit in 1980 and, thereafter, became less interesting and bookish and more programmatic and expedient. Perhaps he was overworked or overtired, inundated with cases and bogged down by the mostly mundane tasks of judging. Perhaps, as should be expected, he paid more attention to his docket than to the philosophers who had enriched his thinking during his youth. Perhaps he never wanted the life of a scholar and previously had spilled his ink to game the ranks of the professoriate, an arduous scheming no longer necessary once he had achieved a position with life tenure and nearly unparalleled retirement benefits. Perhaps a want of constructive idleness and leisured meditation hardened his contemplative faculties. Whatever the reason, Breyer’s scholarship fell off, his writing suffered, and the lamp of his imagination went out. He poured his soul into cases.

Breyer did manage to exhibit flashes of his former acumen in Active Liberty (Vintage, 2005), but his latest book, The Court and the World (Knopf, 2015), notwithstanding the cheering pother it’s elicited, is a snoozer and not particularly edifying. The introduction consists of the kind of tedious mapping and framing that only the student editors of law reviews would tolerate. Breyer separates the book into four parts. Part I addresses the protection of civil liberties during our age of terrorism and constant security threats; Part II, statutory interpretation; Part III, the interpretation of treaties and the lawmaking powers of the president and Congress; and Part IV, communication between jurists from different jurisdictions across the planet. Two animating themes underlie each part: the meaning and import of the rule of law in a globalized world and the incorporation of foreign trends and norms into the legal system of the United States. The latter theme involves principles of comity, or the idea that one jurisdiction will give weight, deference, and authority to the acts, orders, or rulings of another jurisdiction. Breyer’s thesis is that “the best way to preserve American constitutional values (a major objective that I hold in common with those who fear the influence of foreign law) is to meet the challenges that the world, as reflected in concrete cases on our docket, actually presents. Doing so necessarily requires greater, not less, awareness of what is happening around us.”[1] Standing alone, this declaration seems benign and uncontroversial, hardly worth sustained critique or impassioned defense. Yet something is rotten in the state of Denmark, and arguments that seem nonthreatening are not always as they seem.

The Court and the WorldThis essay will analyze Breyer’s attempts to realize his thesis in The Court and the World and raise questions regarding whether he has, in the way he celebrates the transnational turn in judging, betrayed his own provinciality and proven his own misunderstanding of foreign developments as he puts paternalistic presuppositions on display. Rather than modeling a greater awareness of “what is happening around us”—his stated goal—Breyer demonstrates a profound unawareness of international trends and norms, not to mention a paternalistic view of the role of American courts in relation to the cultures and values of peoples beyond American borders.

I will suggest, as well, that Breyer advocates approaches to judging that, if widely followed and accepted, could fundamentally undermine his notions of comity and international interdependence; thus, his jural prescriptions, such as they are, ought to be approached with extreme caution if not rejected outright, at least until a better case can be made for them.[2] Although Breyer purports that he “does not pretend to offer any ultimate or even provisional solutions”[3] to the challenges presented by globalization, or that he “merely surveys what is for many an unfamiliar and still-changing legal landscape,”[4] he champions certain methods and viewpoints that lead inexorably to predictable and definite outcomes.[5]

My chief criticisms are threefold: (1) Breyer affirms the obvious and, thus, contributes nothing meaningful or constructive to our ongoing conversation about the role of foreign law in domestic courts; (2) he defends a transnational turn in jurisprudence at the expense of the liberal, democratic principles he purports to value; and (3) his lack of historical and philosophical understanding, or his refusal or inability to employ that understanding in the service of rational argument in this book, undermines his reliability and undercuts any lasting merit his arguments for transnational adjudication and jurisprudence might enjoy. These are not my only concerns about Breyer and his latest book, but a commentator nervous about the prestige and grandeur of the High Court must shrink from enumerating every failure of one of its most eminent justices. As I am not motivated by pure animus or set in the way of critique, I do praise Breyer’s work where praise is due, in particular regarding his sensible apprehensions about the scope of presidential power, especially during wartime.

The gravamen of Breyer’s argument is that because of communications technology, ease of travel, and globalization, the influence of foreign law on United States courts is on the rise. That is indisputable and self-evident. No reasonable person doubts that we live in “an ever more interdependent world—a world of instant communications and commerce, and shared problems of (for example) security, the environment, health, and trade, all of which ever more pervasively link individuals without regard to national boundaries.”[6] It does not follow from this obvious given, however, that a knowledge of foreign laws and legal institutions should be accompanied by their binding application in the courts of our nation, or that any hesitance to embrace unprecedented levels of extraterritorial-based experimentation with the domestic legal system constitutes, in Breyer’s words, “stand[ing] on the sidelines” or a “withdraw from the international efforts to resolve the commercial, environmental, and security problems of an increasingly interdependent world.”[7] Such language borders on bad-faith and casts doubt on Breyer’s credibility, integrity, and motivation. After all, Breyer does not attempt to explain or even address the potential arguments of his opponents, who are never named in the text (unless they are his colleagues on the bench), nor does he concede when his opponents’ points are valid. Instead, he militates against straw men and caricatured positions that, in his telling, stand in the way of necessary progress and experimentation. Lest I surrender to the same dishonest tactics here, I turn now to key examples from Breyer’s chapters to substantiate my three presiding criticisms.

It is helpful at the outset to note a structural dichotomy that frames Breyer’s argument. “[T]he important divisions in the world,” Breyer opines, “are not geographical, racial, or religious but between those who believe in a rule of law and those who do not.”[8] With this tidy summation Breyer presses into two sides all the world’s religious varieties and cultural multiplicities, each with their own normative codes and modes of participation in government and politics. The risk of Breyer’s oppositional pairing is plain: inattention to nuanced realities, simplification of complex systems and beliefs, reduction of complicated theories, neglect of rivaling perspectives, and so forth. That is not to say such casual coupling has nothing to recommend it; sometimes easy heuristics and graspable models are helpful. Consider, for instance, Aristotle’s ten predicates or the hypothetical State of Nature popularized by Hobbes and Locke. Yet a justice on the United States Supreme Court who urges American judges “to understand and to appropriately apply international and foreign law”[9] should avoid the type of essentializing that subsumes important, distinguishing characteristics of diverse legal systems under two broad categories, one good and one bad. This simplistic dichotomy does manifest injustice to those cultures and communities—many of them more traditionalist, religious, localist, and conservative than their European and American neighbors—which consider themselves to be governed by the rule of law, however different that version of the rule of law may seem from the standards and structures figured in Breyer’s operative paradigm.

supreme courtTo his credit, Breyer is upfront about his assumption that “the United States will remain a preeminent world power, due to its military and economic strength and the prestige of certain features of American life, including our long experience in creating, maintaining, and developing a fairly stable constitutional system of government.”[10] And he is likely right on that score as a matter of factual probability. He also exhibits an endearing pride when he intones that the American legal system has “allowed a large multiracial, multiethnic, and multireligious population to govern itself democratically while protecting basic human rights and resolving disputes under a rule of law.”[11] Yet inherent in his commendation of the American legal system is the unexamined presumption that the legal norms of other, more traditionalist places and cultures are inferior to those of the United States or else poor foundations for the rule of law in practice. “When, therefore, I use the frequently heard term interdependence,” Breyer avers, “it is with these assumptions”—i.e., those assumptions which affirm the superiority and staying power of the American legal system–“firmly in mind.”[12] These assumptions, however valid they may seem at first blush, signal a telling paradox, if that is the right word. To wit, Breyer admires the tolerance and accommodation made possible by liberalism and democratic constitutionalism, but in prioritizing tolerance and accommodation he would open the American legal system to their opposite. Developing in tandem with the proliferation of transnational norms and institutions is the equally rapid spread of radicalism and reaction,[13] exemplified most notably in Islamic terrorism and Sharia Law but evident to a lesser degree in the pseudo-nationalist movements and organizations percolating across Europe. Breyer’s call for the adoption of foreign laws and legal norms could mean the eventual obliteration of the very flexibility and latitude that enable jurists like him to look abroad for instruction and guidance.

Breyer is right in one vital respect: Interdependence has a “particularly worrisome manifestation”[14] as a result of national-security threats, the judicial response to which has been to increase presidential powers at the expense of constitutional fidelity. Breyer’s thesis for Part One, which addresses national security and presidential power, is laudably direct and succinct:

“This Part will show the Court steadily more willing to intervene and review presidential decisions affecting national security, even to the point of finding a related presidential action unconstitutional. What is notable is that this progression toward assertiveness has occurred even as threats to national security have become more international, indefinite with respect to manner, and uncertain with respect to time. Indeed, threats today are less likely to arise out of a declaration of war by another sovereign power and more likely to be posed by stateless international terrorist networks. They are also more likely to last for many years, perhaps indefinitely. The change in the Court’s approach together with the change in circumstances is, I would argue, no mere coincidence.”[15]

What follows this thesis is less direct and succinct as Breyer undertakes to supply an abbreviated history of the political-question doctrine and its implications for the scope of executive authority.

us passportTo prove the relevance and significance of the political-question doctrine to current affairs, Breyer briefly discusses Zivotofsky v. Clinton (2012),[16] a recent case in which the United States Supreme Court (hereinafter sometimes referred to as “the Court”) determined that issues pertaining to passport regulation were not purely political questions outside the province of the judiciary. The principal focus of this section, however, is historical, surveying with sweeping strokes everything from Abraham Lincoln’s suspension of habeas corpus to Woodrow Wilson’s prosecution of dissenters during wartime to Harry Truman’s seizure of steel mills, which were private property. Accordingly, Breyer analyzes United States v. Curtiss-Wright Export Corp. (1936) (which held, inter alia, that the President of the United States is constitutionally vested with plenary executive authority over certain foreign or external affairs; that the powers of external sovereignty enjoyed by the United States federal government do not depend on affirmative grants of the United States Constitution; and that the United States Constitution, and the laws passed pursuant thereto, have no force in foreign territory);[17] Korematsu v. United States (1944) (which held that the executive exclusion orders providing for the detainment of Fred Korematsu, an American citizen of Japanese descent, were constitutional);[18] and Ex parte Quirin (1942) (which upheld as constitutional the jurisdiction of U.S. military tribunals—created by executive order—used to prosecute German saboteurs in the United States).[19] Under these cases, the president enjoys wide discretion and privilege in matters of national security and foreign affairs. If Breyer’s summaries of these cases repay rereadings, it is because they are useful guides to landmark cases—but no more useful than any of the student briefs or encyclopedia entries that can be found online.

To his credit, in my view, Breyer rejects the guiding rationale in Curtiss-Wright, Korematsu, and Quirin and finds wisdom in Youngstown Sheet & Tube Co. v. Sawyer (1952), which held that the president did not possess the inherent power, purportedly in the public interest, to order the Secretary of Commerce, during wartime, to seize the private property of steel companies that were wrangling over labor disputes. Youngstown Sheet, whatever else it stands for, represents a stark departure from the mode of absolute deference to executive power adopted and perpetuated by the Court in earlier eras.[20] Why did the Court reverse course in Youngstown Sheet? According to Breyer, “Judges are inevitably creatures of their times, and the Steel Seizure justices had just seen totalitarian regimes destroy individual liberty in Europe. While they did not necessarily fear the rise of an American dictator, knowledge of what happened to other democratic societies must have been sobering.”[21] This explanation would have us believe that a mere awareness of foreign affairs—not fidelity to the terms of the Constitution—motivated the decision in Youngstown Sheet. Although the events of World War One and World War Two and other twentieth-century geopolitical struggles no doubt loomed large in American memory, Justice Black’s opinion in Youngstown Sheet, as well as the concurrences with that opinion, grounded themselves in the text of the Constitution, not in extraconstitutional historical analysis or commentary on current events.

the-constitution-in-text-and-spiritBreyer acknowledges that presidents will, as a matter of course, seek to exercise vast authority to resolve urgent conflicts, but he believes the Court’s institutional duty is to ensure that executive power is prudently circumscribed. “We should,” he says, “expect presidents to make broad assertions of presidential authority, especially during an emergency, when in the rush of immediate events they face immediate problems requiring immediate solutions. The Court, by contrast, playing a different institutional role, can and must take a longer view, looking back to the Founding, across the nation’s history, and sometimes into the unforeseeable future. No matter how limited an opinion the justices try to write, their holdings will be taken as precedent, perhaps for a very long time.”[22] Looking to history and tradition to demarcate executive power is, of course, good, but Breyer appears to disregard the fact that constitutional interpretation—the way in which provisions of the constitution are read and applied by judges and justices—is embedded in historical networks and processes. A judge or justice may not undertake historical inquiry that is divorced from the text of the Constitution, which must provide the framework and serve as the source for judicial decisions no matter the era and no matter the sociopolitical exigencies. If history were to instruct judges and justices that certain provisions of the Constitution were unwise or improper, judges and justices would nevertheless be bound by those provisions and could not remake or ignore them based on their personal interpretations of historical events. Reworking or revising the text of the Constitution falls to the legislature, which is electorally accountable to the citizens, whose cultures and values, which are likewise historically informed, shape and guide the amendment process recognized in the Constitution.

Breyer suggests that the so-called “Guantanamo Bay Cases”—Rasul v. Bush (2004),[23] Hamdi v. Rumsfeld (2004),[24] Hamdan v. Rumsfeld (2006),[25] and Boumediene v. Bush (2008)[26]—represent a new trend, or “the culmination of an evolution that may continue.”[27] Advocates for some Guantanamo Bay detainees had, during the presidency of George W. Bush, begun filing writs of habeas corpus and other, similar actions in the courts of the United States, challenging the detainees’ imprisonment on foreign soil as well as the government’s position that the detainees were not entitled to, and thus not denied, access to the legal system of the United States. Although these cases reaffirmed the longstanding authority of the executive branch in certain areas, they also pushed back against executive powers, vesting in the detainees the right to challenge their detention in the legal system of the United States. These cases collectively established that individuals detained as enemy combatants were entitled to due process of law, notwithstanding their citizenship or executive prerogative, and they effectively curbed the government abuse occasioned by special military commissions and the suspension of habeas corpus. The Court ensured that the rule of law, however strained, obtained in times of war as in times of peace. The days of Curtiss-Wright and Korematsu were, the Court proved, no longer with us. Breyer attributes this development to a growing awareness of other countries and cultures. “The intrusion of the world’s realities into our national life,” he says to this end, “no longer seemed, as it once had, such an anomalous thing, justifying anomalous results.”[28]

Decorative Scales of Justice in the CourtroomJustice Breyer is correct that the “world’s realities” have forced a rethinking of the judicial role and judicial authority, but, again, he closes his eyes to other realities, namely, those demonstrating how constitutionally limited the judicial role and judicial authority are and must be. He characterizes the allegedly new approach as “engagement,” as if, in this particular context, it were not already the prescribed role of the judicial power under the Constitution. “Rather than sit on the sidelines,” Breyer says, “and declare that cases of this kind pose an unreviewable ‘political question,’ or take jurisdiction but ultimately find for the President or Congress as a matter of course, today’s Court will be more engaged when security efforts clash with other constitutional guarantees. It will listen to the government and consider its arguments, but it will not rubber-stamp every decision.”[29] The problem with this characterization is twofold: first, it suggests that the Court is doing something that the Constitution does not require the Court to do and ignores the possibility that the Court in earlier eras might have been acting unfaithfully to the text of the Constitution as the justices shirked their constitutional duties; and second, it could operate as a basis for validating judicial “engagement”—one might say “activism”—in other areas such as the Fourteenth Amendment, under which the Court has forged a grotesque line of precedent, supposedly emanating from the substantive-due-process and equal-protection clauses, that has less textual basis in the Constitution than the sort of judicial engagement manifest in the Guantanamo Bay Cases.

However appropriate Breyer’s concerns about presidential power may be, they are undercut by his reticence to admit that our own Constitution has equipped us with adequate remedies for the problem. He preaches that, in the future, the Court must achieve a “greater willingness to understand and take account of both the world and of the law beyond our borders,” as well as a “readiness to meet the various challenges of doing so,”[30] as though the Guantanamo Bay Cases had nothing to do with the laws within our borders and everything to do with the laws beyond our borders. Leaving aside the problematic jurisdictional and legal status of Guantanamo Bay, a military prison located within the borders of another nation—one that is not an ally of the United States—the fact of the matter is that the Guantanamo Bay Cases involved disputes over provisions in the United States Constitution and the laws of the United States. The Court did not divine its conclusions from, or predicate its rationale on, some greater understanding of the world and extraterritorial law. Thus, Breyer overstates the importance of interdependence in these cases.[31] Although it is true that “[o]ther courts and legislatures have faced and are facing similar threats to their nations’ peace and safety” and that those institutions “have engaged in similar projects to those before our Court of balancing security and liberty,” nothing those courts or legislatures say or do is binding on the courts in the United States,[32] even if their solutions, which Breyer does not specify, “serve as constructive examples that our Court could put to good use.”[33] Nothing in Part I of Breyer’s book supports this conclusion. Instead, that portion of the book reveals how the laws of the United States have, over time and despite setbacks and mistakes, worked better than foreign laws to check power grabs and mediate conflicts as the Court gradually came to adopt rather than disregard certain principles enshrined in the Constitution. If anything, foreign law in this section of the book—as evidenced by the legal architecture of the 20th century totalitarian regimes that loom in the background of Breyer’s narrative—serves as an illustration of what not to mimic and incorporate into the American system.

court roomI pretermit examination of Part II of The Court and the World because its thesis—that courts in determining the reach of domestic statutes must consider the effects of doing so on foreign laws and practices[34]—is straightforward and unremarkable. Moreover, its lengthy treatment of the Alien Tort Statute and other such legal texts is unlikely to interest those unfamiliar with or uninterested in that subject. This section of the book, in which the focus shifts from constitutional analysis to statutory construction, bears out what Breyer means by comity. Breyer urges the United States Supreme Court, and presumably other, inferior courts, “not simply to avoid conflict but also to harmonize analogous American and foreign law so that the systems, taken together, could work more effectively to achieve common aims.”[35] This is an expansive interpretation of comity in that it encourages judges not only “to ensure that domestic and foreign laws d[o] not impose contradictory duties upon the same individual,”[36] the traditional view of comity, but also that judges “increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web.”[37] To achieve comity, so understood, judges must familiarize themselves with foreign laws and customs and can do so through academic journals, treatises, and articles.[38] This advice gestures towards Breyer’s proposal that American judges consider themselves, and conduct themselves as, diplomats.

This proposal, which takes shape in Part III and IV, is not as brazen as it may initially seem because Breyer turns his eye on the role that treaties and other international agreements have played in the domestic legal system. A feature of international law with felt ramifications on the everyday lives and economies of domestic citizens, treaties force judges to contemplate international relationships. Presidents have, over several decades, exercised treaty powers more frequently and on subject matters increasingly more domestic. They have created new agencies that promulgate and enforce rules and regulations, thus leading to new and bigger bureaucracies. “How has the Court’s approach to the interpretation of international agreements adapted to these changes?” Breyer asks.[39] His answer, in part, is that “[i]t has become more important to find interpretative solutions that are workable, thereby showing that a rule of law itself can work.”[40] “[I]t has,” he adds, “become more important for the courts to understand the details of foreign and international rules, laws, and practices.”[41] Breyer’s substantiates this claim with discussions of child custody, international arbitration, and the delegation of authority from domestic to international bodies created by treaty or other such mechanisms.

A certain smugness inheres in Breyer’s remark that “judges who would hesitate to consider decisions of foreign courts when interpreting the American Constitution do not hesitate to consult such decisions when treaties are in question.”[42] Surely, though, Breyer knows the difference between incorporating foreign legal principles into opinions when those principles have merely persuasive value (and no binding operation) in a case and deciphering the outcome-determinative rules in treaties that are at issue in the case as well as a valid source of law under the Constitution.[43] There is a palpable difference between judges in a death-penalty case considering data about how many countries recognize capital punishment[44] and judges in a child-abduction case interpreting the Hague Convention on the Civil Aspects of International Child Abduction, to which the United States is a party. The latter activity has caused the Court to venture “into uncharted legal territories, reckoning with (and at times applying) foreign laws concerning what once were almost exclusively local matters.”[45] It stands to reason that the Court would consider how judges in other countries, bound by the same child-abduction treaty, would interpret the text of that treaty, but why should the Court therefore consider another country’s capital-punishment laws to which the United States never submitted itself, by treaty or otherwise?

Breyer is on better footing in his discussion of the mandatory arbitration provided for in international treaties, which, as they multiply, will increasingly require interpretation by American judges.[46] For obvious reasons, this method of resolving transnational commercial disputes has become more common than court litigation. “[W]hen borders are crossed,” Breyer explains, “arbitration offers the crucially important advantage of forum neutrality—parties can appear before a neutral decision maker without having to be hauled into the other’s courts. The practice is therefore particularly popular among investors in developing countries, who are often skeptical of the local court systems.”[47] It can be vexing to resolve complex disputes between private parties and nation-states for numerous reasons, chief among them being the lack of a widely accepted forum for judicial review;[48] furthermore, the jurisdictional effects of economic globalization are not yet fully known, a fact Breyer acknowledges.[49] Thus, alternative dispute resolution, including and especially arbitration, seems like an area in which Breyer could have done more clarifying and elucidating. With perhaps his strongest points coming in his chapter on arbitration, it’s a shame he spends so little time on the subject, which is rapidly evolving and becoming ever more important to the economic activities not just of governments and large corporations, but of private individuals and small businesses.


Justice Stephen Breyer

It is the matter of socioeconomic, cultural, and political evolution that betrays Breyer’s provincial paternalism. Of course times are changing. Yet when Breyer announces that “[c]hange is upon us,”[50] he seems blissfully unaware of the nature of the change. He is never recklessly explicit about it, but he appears to imply that the United States ought to follow liberal trends that he apparently sees in other countries.[51] If he is correct that “the Court will increasingly have to consider activities, both nonjudicial and judicial, that take place abroad,”[52] then, depending on what he means by “consider,” we may need to prepare ourselves for, to name one possibility, radical Islamic jurisprudence or the spread of intransigent government and messianic statism. Or if Breyer finds unpalatable the form of Islamic law that ISIS, Boko Haram, al-Qaeda, al-Shabaab, or the al-Nusra Front seek to impose on their subjects, perhaps he would prefer China’s two-child policy; India’s abolition of the jury trial; Singapore’s criminalization of littering, chewing bubble-gum, and possessing pornography; or laws prohibiting homosexual activity—some of which carry the death penalty for their violation—in countries from Afghanistan and Saudi Arabia to Dominica and Malawi. I express no opinion here on the value or merit of any such laws outside the United States of America. I raise these examples only to demonstrate the implications and potential ramifications of Breyer’s arguments, which are intended to promote a different vision.

In Breyer’s paradigm “foreign” and “international” appear to mean nothing more than Western European, since he fails or refuses to consider the legal institutions of any Asian, South American, Middle Eastern (Israel excluded), Russian, or African nations. Nevertheless, Breyer seems unaware of the direction the political winds are blowing in the actual flesh-and-blood Europe. Breyer does not strike me as one who would welcome the construction of the chain-link, razor-wire fence—authorized by Hungarian President Viktor Orban—that stretches more than 100 miles along the border of Hungary. Nor do Breyer’s views seem compatible with those of Marine Le Pen and the French National Front, or Laszlo Toroczkai, the youthful Hungarian mayor of Asotthalom, or Geert Wilders, the Dutch founder of the Party for Freedom. Breyer wants Americans to look to Europe to undermine nationalism, yet nationalism is on the rise in Europe.

The French have banned face-covering attire so that Islamic women may not wear a burqa or a niqab. The Swiss People’s Party has become increasingly popular, the Swiss having begun restricting immigration under a quotas law established by a 2014 referendum. The effectiveness and long-term viability of treaties such as the Schengen Agreement among European nations has been called into question. Secessionist movements have sprung up in Scotland, Catalonia, Flanders, and Venetia, and the United Kingdom will soon hold a referendum to determine whether it will remain a member of the European Union, whose future is in jeopardy, as pointedly demonstrated by Jürgen Habermas’s recent plea for European solidarity.[53] The unintended irony underpinning Breyer’s love affair with Western Europe is that, in urging the gradual adoption and enduring “consideration” of foreign laws by American judges, he has laid the groundwork for measures at odds with his liberal, democratic principles.

A vital sense of the interconnectedness of nations has impressed itself deeply in the imagination of certain elites in the United States. It is liable to the type of paternalism exhibited in The Court and the World. In some circles the mere mention of foreign norms or institutions confers upon opinions a prestige too quickly confounded with profundity and intelligence. Even so, the discriminating reader will find little profound in Breyer’s book. Of Breyer’s two chief shortcomings, that of stating the obvious (globalization has caused foreign law to play new roles in domestic controversies) and that of opening domestic courts to the incorporation of foreign law notwithstanding the relevant terms of domestic law or the restraints on such incorporation established by statute or the Constitution, the latter shortcoming is more damaging. Domestic law has mechanisms for dealing with foreign laws. Those mechanisms resolved most of the cases and controversies Breyer discusses in the book. Thus, Breyer hardly replenishes the field of transnational adjudication with fresh insight or makes a compelling case for the embrace of foreign law.

death penaltyEven regarding the death penalty, Breyer’s advice to look to foreign law for guidance could backfire. According to Amnesty International, executions worldwide were up 28% in 2014.[54] A quick appraisal of Amnesty International’s country profiles on the death penalty reveals that those countries which have abolished the death penalty are experiencing population decline.[55] The death penalty remains popular and prevalent in emerging countries.

Despite his grand vision of judges as diplomats who divine from foreign principles the right and proper course for social action within their jurisdiction,[56] Breyer gently insists on merely humble objectives, muting the vast implications of his argument with careful qualifications such as this one:

“This book is based upon my experience as a judge. It does not survey the whole of international law or even of foreign law as it affects Americans. Nor does it comprehensively describe the instances in which courts must deal with questions involving that law. It illustrates and explains what I have seen and why I believe there is an ever-growing need for American courts to develop an understanding of, and working relationships with, foreign courts and legal institutions.”[57]

Breyer’s description here of what his book does not do is also an adumbration of what his book cannot do: no single book could survey the whole of international law or foreign law as it affects Americans; no single book could comprehensively describe the interaction of international or foreign law with American courts. Nor could Breyer speak from the perspective of someone not himself. Few people, I suspect, object to gaining a greater understanding of foreign courts and legal institutions. Yet the phrase “working relationship with foreign courts and legal institutions” remains problematic. What does it mean? Breyer’s book provides no shortage of possible answers, but the inquisitive reader will come away dissatisfied at the want of clarity.

Breyer’s arguments, finally, are as nothing without the sonorous prose of a Justice Holmes or Justice Cardozo. Anyone could have written this book, which should have been set apart by the fact that its author is a sitting justice. Breyer tells us nothing any close observer of the Court or the legal system could not have said and likely would have said with superior skill and rhetoric. He teases us with passing mention to interactions that are “typically invisible to the general public,”[58] but those interactions remain equally invisible in the book; there are no details about backroom deliberations, about how or why judges and justices compromise their hermeneutics or jurisprudence in the face of international pressure or as a result of some “global” perspective. We’re not told about our Supreme Court justices’ private discussions, research methodologies, philosophical influences, reading habits, or reliance (or non-reliance, as the case may be) on law clerks, amicus briefs, historical documents, or foreign scholarship.

LawNo working judge or lawyer should read this book because most of its subject matter is already recognizable in everyday legal practice to anyone with a basic awareness of professional trends. Those without a legal background will find nothing here that is not already presented more skillfully and comprehensively in casebooks or textbooks. Breyer’s simplistic method (“look abroad, friend”) would have unintended consequences incompatible with his liberal and democratic sensibilities. The Court and the World is a profound waste of effort because it belies its own thesis. This is destined to become “just another book” written by a judge. One might object that a book so unimportant warrants but a short review. On the contrary, a longer review has the benefit of laying bare the many reasons why buying and reading this book is unnecessary. One wonders whether the young, more philosophical Breyer would have developed a more striking argument for his views on transnationalism, or whether he would have inhabited these views at all.

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[1] Stephen Breyer, The Court and the World: American Law and the New Global Realities (New York: Alfred A. Knopf, 2015), 8.

[2] I do not mean this as an insult. Breyer himself encourages others “to find better and specific responses” than he can offer from his limited vantage point as a justice on the United States Supreme Court. Ibid., 6.

[3] Ibid., 281.

[4] Ibid.

[5] Breyer can be impressively subtle with his advocacy. For example, when he asserts that “our federal courts may eventually have to take account of their relationships with foreign institutions just as they now take account of their relationships with state courts and other American federal and state legal institutions,” he appears, in context and in light of his arguments throughout the book, to mean that federal courts ought to take account of their relationships with foreign institutions. Ibid., 7. The vague verbal construction “take account of” begs the question: What does Breyer have in mind? To “take account of” something seems innocuous and not quite the same as “utilizing,” “following,” or “employing.” The argument that courts ought to “pay attention to” foreign law is not remarkable. It becomes clear, however, as Breyer lays out his argument, that “take account of” means something more like the deliberate implementation and incorporation of foreign laws and norms in the American legal system, a far more controversial notion than simply to notice or observe foreign law with objective distance.

[6] Ibid., 4.

[7] Ibid., 235.

[8] Ibid., 284.

[9] Ibid., 7.

[10] Ibid., 4.

[11] Ibid.

[12] Ibid.

[13] I use the term “reaction” or “reactionary” differently from the way in which that term is employed by, say, Paul Elmer More or, more recently, Mel Bradford and John Lukacs. A full explanation of the manner in which I use the term here would exceed the scope of the piece, even if it would yield valuable returns.

[14] Breyer, The Court and the World, 81.

[15] Ibid., 13.

[16] 132 S. Ct. 1421, 566 U.S. ___, 182 L. Ed. 2d 423 (2012).

[17] 299 U.S. 304, 318-19 (1936).

[18] 323 U.S. 214, 221-22 (1944). Of this holding, Breyer states, “So what happened to civil liberties? How could the Court have reached such a decision? The question is a fair one, particularly since the majority included Justices Black, Douglas, Frankfurter, and Reed, all of whom later joined the unanimous Brown v. Board of Education decision, striking down racial segregation as unconstitutional. The most convincing, or perhaps charitable, explanation that I can find is that the majority, while thinking the government wrong in Korematsu itself, feared that saying so would only lead to other such cases in which the government was right, and that the Court would have no way of telling one kind from the other. Someone has to run a war. In this case, it would either be FDR or the Court. Seeing the folly of the latter choice, the Court elected not to question the President’s actions. This is an argument, baldly put, for broad, virtually uncheckable war powers. But as we have seen, it resembles what many presidents may actually have thought in time of war.” Breyer, The Court and The World, 36.

[19] 317 U.S. 1, 63 S. Ct. 1 (1942) (ruling in advance of a full opinion); 317 U.S. 1, 24-29, 63 S. Ct. 2 (1942) (ruling with full opinion).

[20] In Breyer’s words, “the Steel Seizure case, even if read narrowly, represents a major change in the Court’s approach to the President’s emergency powers. Occasionally a prior case … had pointed to court-enforced limits. But in the Steel Seizure case, the Court both held that limits existed and analyzed the matter in detail. Its conclusion: better the indeterminacy of Pharaoh’s dreams than a judicial ratification of presidential emergency power without limits.” Breyer, The Court and The World, 63.

[21]Ibid., 61.

[22] Ibid., 61.

[23] 542 U.S. 466 (2004).

[24] 542 U.S. 507 (2004).

[25] 548 U.S. 557 (2006).

[26] 553 U.S. 723 (2008).

[27] Breyer, The Court and The World, 80.

[28] Ibid., 81.

[29] Ibid., 80.

[30] Ibid., 13.

[31] Breyer concludes Part I by stating: “Interdependence means that, when facing subsequent cases like those discussed so far, the Court will increasingly have to consider activities, both nonjudicial and judicial, that take place abroad. As to the former, the Court will have to understand in some detail foreign circumstances—that is, the evolving nature of threats to our nation’s security, and how the United States and its partners are confronting them—in order to make careful distinctions and draw difficult lines. This need for expanded awareness will require the Court to engage with new sources of information about foreign circumstances, in greater depth than in the past. Indeed, by agreeing to decide, rather than avoiding or rubber-stamping, cases involving national security, the Court has implicitly acknowledged a willingness to engage with the hard facts about our national security risks.” Ibid., 81.

[32] Ibid., 81.

[33] Ibid., 82.

[34] Ibid., 91-92, 96-97.

[35] Ibid., 132.

[36] Ibid., 92.

[37] Ibid., 91.

[38] Ibid., 96-97.

[39] Ibid., 168.

[40] Ibid.

[41] Ibid.

[42] Ibid., 169.

[43] That Breyer devotes considerable space to his concerns about treaty powers in relation to other constitutional provisions, such as the Supremacy Clause, shows he is alive to this distinction; his concerns also suggest that, under the Constitution, with regard to treaties, there remain open questions among reasonable thinkers about the limits and proper application of the separation-of-powers doctrine. See generally Ibid., 228-235. See also Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Medellín v. Texas, 552 U.S. 491 (2008); Bond v. United States, 572 U.S. ___ (2014).

[44] See Breyer, The Court and the World, 237-39.

[45] Ibid., 170. See, e.g., Abbott v. Abbott, 130 S. Ct. 1983, 560 U.S. 1 (2010); Lozano v. Alvarez, 133 S. Ct. 2851 (2013).

[46] Breyer, The Court and the World, 195-97.

[47] Ibid., 180-81.

[48] See BG Group PLC v. Republic of Argentina, 572 U.S. ___, 134 S. Ct. 1198 (2014) (discussed in Breyer, The Court in the World, 185, 187-92, 195).

[49] Breyer, The Court and the World, 195.

[50] Ibid., 81.

[51] In his responsibly mixed review of The Court and the World, Akhil Reed Amar states, “Left largely unstated is Breyer’s apparent premise that as American judges become more familiar with non-American legal sources …, these very same American jurists will just naturally begin to think globally and to ponder foreign legal materials even in plain-vanilla cases of American constitutional law that do not directly involve foreign events or foreign persons.” Akhil Reed Amar, “Law and Diplomacy,” Los Angeles Review of Books (November 24, 2015) [available online at] (last accessed January 3, 2016).

[52] Breyer, The Court and the World, 81.

[53] Jürgen Habermas, The Lure of Technocracy, trans. Ciaran Cronin (Cambridge, United Kindgom: Polity Press, 2010), 3-28.

[54]Death Penalty,” Amnesty International Website, “What We Do” (last accessed January 3, 2016).

[55]Countries,” Amnesty International Website, “A-Z Countries and Regions” (last accessed January 3, 2016).

[56] Breyer submits the following: “When judges from different countries discuss different substantive approaches to legal problems, compare procedures, and evaluate the efficacy of judicial practices, they are not only exchanging ideas about specific tools of the trade. There is more. The underlying, but often unspoken, theme of any such meeting is the sustained struggle against arbitrariness. If the objective is ambitious, it has been so since the time of Hammurabi. The enterprise is not without setbacks. Often, like Penelope’s weaving, what we create during the day is undone at night. But the effort is worthwhile. Civilization has always depended upon it. It still does. And now, to an ever greater extent, jurists from many different countries engage in that effort together.” Breyer, The Court and the World, 280.

[57] Ibid., 7.

[58] Ibid., 5.

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  1. Ouch! But, thank you. Was Judge Breyer’s book the traditional pre-requisite for a possible Supreme Court Appointment?

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