Justice Kennedy: "The (Legal) World is Flat"

Justice Kennedy is just looking for a fight with conservatives in Congress annoyed by his increasingly frequent citation to international and foreign law in the interpretation of the Constitution. In a speech to the 11th Circuit Judicial Conference, he remarked:

“It’s really quite wrong to say that the Supreme Court ignores international law and doesn’t understand it,” he said.

Referring to the title of a book by New York Times columnist Thomas Friedman about increasing globalization, Kennedy said “the world is now flat, and the U.S. is beginning to be involved in international law.”

(Thanks to Orin Kerr for pointing out this speech).

I am not a huge fan of Friedman’s metaphor, mostly because I have no idea what it means. So I have even less idea of what Kennedy means here by invoking it to refer to U.S. involvement with international law.

Assuming this quote is accurate, I am struck by the silliness of Kennedy’s suggestion that the “U.S. is beginning to be involved in international law.” This will be news to the folks at the State Department, who are cranking out hundreds of executive agreements and treaties a year, and who advise the different parts of the U.S. government on how to interpret and apply U.S. international law obligations. Or the U.S. Congress, which approves and implements these treaties and agreements by advise and consent or through implementing legislation. And what about the zillions of international organizations that the U.S belongs to (and funds).

What is “beginning” is aggressive judicial invocation of international law (even international law that the other branches have rejected) to interpret the U.S. Constitution. This is new stuff, and I don’t think (based on his own use of it in Lawrence and Roper) that Justice Kennedy himself has come up with an explanation of why it is so important to cite international treaties when interpreting the Constitution. No justice has offered a particularly impressive defense of this practice (see discussion of Ginsburg here and Breyer here). It’s too bad that the Justice can’t do better than simply telling us that the “world is flat”.