Justice O’Connor: A Moderate on Internationalism as Well

I have very little to add to the zillions of articles and blog posts about the retirement of Justice Sandra Day O’Connor and her likely successor. I did want to point out, though, that Justice O’Connor was (not surprisingly) a moderate in the Court’s recent embrace of foreign and international law. Justice O’Connor appears to see some useful analogies to the relationship between state and federal courts. As she writes in an article entitled “Federalism of Free Nations,”

As our country moves toward a more international regime of dispute resolution, this federalist ideal of healthy dialogue and mutual trust may be possibly be adapted to describe the proper relationship between domestic courts and transnational tribunals. It is a relationship which might be described as a “federalism of free nations,” to use a phrase of the philosopher Immanuel Kant. Just as our domestic laws develop through a free exchange of ideas among state and federal courts, so too should international law evolve through a dialogue between national courts and transnational tribunals and through the interdependent effect of the their judgments.

On the other hand…

Article III of our Constitution reserves to federal courts the power to decide cases and controversies, and the U.S. Congress may not delegate to another tribunal ‘the essential attributes of judicial power.'”

So she thought foreign and international law was important and useful, but she recognized that there are serious constitutional problems and limitations on this practice. Sensible, moderate, but also analytically dissatisfying. I guess this could describe almost all of Justice O’Connor’s jurisprudential views.