Footnote Filching and other Unsavory Practices in the US Supreme Court: Conclusion

by Marko Milanovic

I understand full well why human rights-minded people in the US feel the need to defend the Hamdan decision. It was, as Dean Harold Koh put it, an attempt at setting the world right after the Bush administration’s assertions of ever increasing executive powers and its decision to keep hundreds of people in legal limbo. I certainly sympathize with that, and there is no disagreement on my part when it comes to the substantive result (however fleeting that might be). Yet, I hope that I have managed to show in my previous posts that the road the Court took to get to that result is a dubious one, both methodologically and from a purely technical legal standpoint.

Nobody expects the Justices of the Supreme Court to be experts in everything, not even international law in general, let alone a branch of international law which as hyper-specialized as is IHL. It is, however, amateurish at best to rely so completely on an amicus brief as they did, as even that brief cannot be fully understood without at least reading the primary sources, such as the ICRC Commentaries.

This amateurism is only augmented by the fact that Hamdan was delivered only one day after the Supreme Court’s Sanchez-Llamas decision, in which the majority of the Court for no good reason snubbed the International Court of Justice, going to such lengths as to accuse the ICJ of failing to comprehend the basic framework of an adversarial system. In a wonderful example of judicial overkill, the opinion written by the Chief Justice also cited Marbury v. Madison for the proposition that it is emphatically the province of the judicial department, headed by the one Supreme Court, to say what [in this case international] law is. Such an assertion of authority borders on the arrogant when the Court lacks the expertise in international law to back it up.

A comparison between the Israeli Supreme Court and the US Supreme Court would be very instructive in that regard. Setting aside the fact that the Israeli Supreme Court was far more respectful of the ICJ in its second decision on the wall/security barrier in the occupied territories than the US Supreme Court was in Sanchez Llamas, the Israeli Court’s understanding of international law clearly outstrips by far its US counterpart. One only need take a cursory glance at the Israeli Supreme Court’s recent Targeted Killings judgment to see the sheer breadth of the sources that the Court has consulted, and compare it to the US Supreme Court’s paucity of authorities in Hamdan, all of which it either misinterprets or miscites. Not only is deciding on complex issues of international law without understanding the basics wrong as a matter of principle, but —it also exposes the Justices to criticism that they are using international law as a mere instrument in purely political decision-making. I think we would all agree that this is something to be avoided.

5 Responses

  1. One of the problems may simply be the way that our judges and theri clerks were taught international law when they were in law school. This, of course, assumes they took at least one course (and not just foreign relations law) as it is not a subject that is tested on the bar. Maybe that is the burden on us.



  2. The comparison to the Israeli Supreme court is very instructive, as is Ben’s observation about the relative paucity of international law in the education of most American law student. I would emphasize two things. First, the Israeli court (similar to the South African Constitutional Court) hires interns and clerks not only from Israel, but from other countries. It’s personnel is thus already internationalized far more than the US court.

    They do this in service of their jurisprudential approach; in the case of Israel, though they have a set of Basic Laws, they have yet to form a written constitution. The Court reviews laws passed against the principles in the Basic Laws, which is essentially the same work of constitutional judicial review, but importantly, the Court does not limit itself to review of its own jurisprudence, which is still relatively young. Rather, it’s approach is always comparative, looking at the Anglo-American tradition and Continental traditions for guidance on all kinds of questions, not just constitutional ones. This does not necessarily mean that it will handle questions of international law or especially international humanitarian law any better. It does seem a step in the right direction, though, particularly if the measure of performance, as Marko suggests, is a bit of humility in one’s ability to interpret a set of jurisprudence that is not one’s own. Arguably, given it’s history of conflict, and the fact that claimants can file claims against military actions directly with the High Court, the Israeli court has had to think a lot more about the application of IHL to the conduct of its military than have many other countries, including, until recently, the US.

  3. The win goes to Marko, who used both barrels with precision, accuracy, and indeed some humility.

    I appreciate his point that this does not mean the result itself is incorrect. Also, I do not take him to be (here) arguing in favor of some globalistic “comparative constitutionalism.”

    How international law is taught, or not taught, is likely a real problem, but that cannot be the real explanation for such inadequacies in this Court. The folks involved in drafting Hamdan are plenty bright to learn IHL on their own.

    A couple of other problems which may be closer to an explanation are: (1) a lazy emphasis on careerism over duty, and (2) a WashingtonPost-like view that everything is politics, and politics is everything.

    Some law clerks among others may need a refresher on the weight of duty involved in drafting these opinions. I among others read Hamdan in Al Anbar province, trying to figure out what it meant for our operations and our treatment of detained persons there. “Okay, so at least we are pretty sure that Common Article 3 applies” is not exactly straight-forward guidance.

  4. I grant they are bright enough but given what we have seen done I am not sure that they are smart enough to learn it on their own to a level that is internationally competitive.



  5. I have to say that I don’t think the Sup. Cts. observation that the ICJ doesn’t understand an adeversarial system is that far off-base. I say that for this reason:

    One day at the International Law Commission, the topic of promissory estoppel came up in relation to a discussion on unilateral declarations. One commissioner was trying to draw an analogy between the two.

    Anyway, the civil trained ILC commissions simply could not grasp the concept. I mean, the common law people might as well have been talking about string theory. The civil law people simply could not comprehend the concept of promissory estoppel.

    The point is that the adversarial system is really hard to understand to someone in another tradition.

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