WWJRD (What Would Justice Roberts Do) with International Law?

In the midst of the pre-confirmation feeding frenzy over Judge John Roberts, it is worth considering (okay, wildy speculating about) how he would approach the use of foreign judicial opinions, legal sources and the more complex questions about how international law is brought into effect through the federal courts. If, as the FT op-ed by David Garrow suggests, Roberts will be another O’Connor, will he step into her shoes as chief diplomat of the Court as well as chief legal pragmatist?

We have only two high-profile cases from Roberts’ time on the DC Circuit to draw on: Acree (dismissing a tort suit brought by US POWs against the Republic of Iraq on the grounds the ATS does not authorize suits against foreign governments. See Julian’s earlier post here.) and Hamdan (upholding the administration’s use of military commissions at Guantanamo. See posts here and here.) Roberts drafted the Acree opinion and joined Judge Randolph in the Hamdan case. As Julian has already noted, Judge Randolph cleverly avoided appearing to grant too much deference to the executive in constituting the military commissions by holding that the congressional authorization to use force following 9/11 granted the administration the power to constitute these commissions and trials. But the jurisprudential posture of Hamdan read together with Acree (in which the adminsitration filed a brief arguing against the POWs claim), could be construed as one that grants broad deference to executive decision-making in foreign affairs, with only a narrow role for the courts.

Professor Oona Hathaway shares some thoughts on additional Roberts cases at the ThinkProgress blog:

In a much less heralded case decided last month, TMR Energy Limited v. State Property Fund of Ukraine, Roberts signed onto an opinion (again authored by another member of the court) that takes the strong position that “[n]ever does customary international law prevail over a contrary federal statute” and cites a controversial new book on international law for the point that “political branches have the final say about whether and how [customary international law] applies in the United States and whether or not the United States will comply with it.” These issues are not nearly as settled in the case law as the opinion makes them out to be. They are instead the subject of vigorous debate and disagreement.
The only case I could find in which Judge Roberts signed onto an opinion that enforced international law was in Robertson v. American Airlines . In that case, the Court of Appeals (in an opinion again authored by another member of the panel) held that the two-year statute of limitations provided by international law applied to the claim of the litigant rather than the more generous three-year rule that generally governs in the District of Columbia and hence the litigant’s suit was barred.

Memos drafted by Roberts while in the Reagan White House Counsel’s Office (published online at the WaPo) Roberts drafted while in the Reagan White House on the Grenada invasion and the detention of the Mariel boatlift asylum seekers. As noted in the Post:

In a memo dated Jan. 13, 1984, he summarily dismissed retired Supreme Court justice Arthur Goldberg’s concerns, expressed in a private letter to the White House, that the 1983 U.S. invasion of Grenada was unconstitutional. “Goldberg is correct that the constitution vests the authority to declare war in the Congress,” he said. The president, however, “has inherent authority in the international area to defend American lives and interests,” an authority that “has been recognized since at least the time President Jefferson sent the marines to the shores of Tripoli. While there are no clear lines separating what the president can do on his own and what requires a formal declaration of war, the Grenada mission seems to be clearly acceptable.”

Roberts adopted a similarly expansive view of presidential powers in his review of the proposed Immigration Emergency Act. The bill was drafted in response to the 1980 Mariel boatlift crisis that brought 125,000 Cuban refugees to U.S. shores. Roberts noted that the legislation would have allowed the United States to “flexibly detain” illegal immigrants as well as “freely transport them between detention facilities.” He said: “It is a broad grant of emergency powers to the President, but I cannot conclude that it is too broad in light of the Mariel experience.”

On the question of whether foreign practices laws and decisions should be used in constitutional decision-making, we’ve got pretty much nothing in the Roberts record. Though I can’t imagine that asking whether European human rights decisions should be consulted on questions of homosexual rights or the death penalty — regardless of the legitimacy of such a practice — is a winning strategy for Democrats on the Senate Judiciary Committee.

While this kind of tealeaf reading can be counterproductive, particularly where there are so few leaves to read, Roberts appears comfortable with an expansive view of presidential authority under both the commander in chief and foreign affairs powers, including on the controversial question of whether the president has sole power to determine the scope of US obligations under treaties, and whether customary international law can ever be binding on federal courts. But he does not appear to be a Robert Bork on the fundamental question of whether international rules exist in a way that is justiciable.

Of course, if Roberts is confirmed and serves several decades on the Court, he is likely to be exposed to more foreign law, foreign judges and international travel than in any of his prior professional positions. Whether he becomes a Blackmun or Kennedy as a result of that exposure remains to be seen.