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Print This PageSouter’s Departure and an Internationalist Court
The conventional wisdom is probably correct here, that David Souter’s retirement won’t make much of a difference to the Court’s overall balance. But no two Justices are alike. There will be inevitable differences in style and approach, and on the less prominent questions, the ones mostly off the radar screen, that can lead to different votes. I don’t know much about Souter’s business law jurisprudence, for example, and I doubt that anyone will focus on how it differs from the nominee to replace him. (More here on how his departure may shake things up from Jonathan Adler.)
Might IL-related cases pose another such area? One of Souter’s many, many charms is that he is most definitely not a product of globalization. You won’t find him trailing along the other justices for European summer junkets; I doubt very much that he would self-identify as a member of the global community of courts. If only as a generational matter, his successor will almost surely have more of an international orientation. At least one pick on everyone’s short list, Diane Wood of the 7th Circuit, would bring serious IL depth to the Court.
Not that Souter has resisted the use of international law. He joined the Atkins-Lawrence-Roper trilogy and the detainee decisions. But he wasn’t out front in using international and foreign law in the way of Breyer, Ginsburg, and Kennedy. His replacement might be, now especially that Harold Koh’s nomination as State Department Legal Adviser has shown sovereigntism up as a spent political force. (Koh himself appears on some nominee slates. One wonders if he might have gotten a tougher reception if his hearing had been next week rather than this.)
Less visibly, Garamendi, Crosby, and Sosa, where Souter wrote for the majority on foreign relations federalism and the Alien Tort Statute, are where one might see an altered dynamic. Sosa’s split-the-difference caution might be up for grabs, with a likely return of the ATS to the docket rather than later. In Crosby and then Garamendi, he worked from old-line premise of federal supremacy. That carried the day in Garamendi by only a single vote, with Ginsburg, Stevens, Scalia, and Thomas in dissent. Garamendi is already under stress after Medellin, with Roberts replacing Rehnquist (another example of how ideological confreres can go their different ways). One question you won’t hear in any confirmation hearing: how do you feel about Barclays Bank v. Franchise Tax Board? Its revival may be among the new directions of a reconstituted Court.
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Dear Peter,
It’s been a while since we last tangoed over the movement afoot in the dominant political party to import European and other foreign and international legal norms into the US at the federal, state and local levels, through either the executive, legislative or judicial branches of government. I recall we also briefly disagreed about the constitutional limitation placed on the federal treaty-making clause and the ability of trans-nationalist justices to delegate their constitutional authority to foreign tribunals to ensure the importation of non-US legal norms.
I frankly don’t understand what you mean when you say, “Harold Koh’s nomination as State Department Legal Adviser has shown sovereigntism up as a spent political force”. Are you assuming that his nomination is a slam-dunk, or that Americans no longer care whether the US remains a sovereign nation?
I for one have submitted to the SCFR, on behalf of the Institute for Trade, Standards and Sustainable Development (ITSSD), documents opposing his nomination on substantive legal grounds. I tentatively conclude that, based on his own words, Koh, as State Department Legal Adviser, would not hesitate to give deference to foreign and international legal norms when interpreting treaties during negotiation, ratification/accession and ultimately, for purposes of implementation as a matter of US law. He would also likely support expanded exercise by the president of his executive powers (E.Os, presidential memoranda, etc.) to ensure that agency regulations are enacted, modified and enforced consistent with foreign or international law. Also, Koh would likely use such mechanisms to press US courts to give deference to foreign and international tribunal judgments in more than a few cases, as you suggest e.g., Medellin, Sosa, etc . Apparently you agree with this philosophy, based on your comments above and your conclusion, don’t you?
But, I am eager to hear how you justify your conclusion that sovereigntism is a spent political force. Do you believe merely because the party in political control can, in the end, discount and virtually ignore opposition to the Koh nomination, that Americans do not value their sovereignty?
Do you really believe that this nation’s citizens will readily allow the Obama administration to surrender US sovereignty through ratification of or accession to international treaties, especially after hundreds of thousands of US soldiers have fallen over the past century in order to preserve US sovereignty? Do you actually believe there will be no backlash against this administration once its latent trans-nationalism is ‘outed’?
For this reason, the ITSSD issued a press release today announcing to the American public a law review article I authored which will appear in the forthcoming issue of the Santa Clara Journal of International Law. It is entitled, What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe’s Precautionary Principle as US Law.
This article is intended to educate the American public about the complexity of the UNCLOS, especially its vast environmental component. It is also intended to prompt the American public to demand that Congress convene public hearings to investigate UNCLOS’ environmental component. This article describes how US sovereignty and US individual constitutional rights can be subjugated to and overriden, under the right political circumstances, by foreign and international legal norms when US congressional representatives officials within the US Senate vote in favor of treaty accession and those within the House enact associated implementing legislation to bring US laws into alignment with foreign laws and expectations. In addition, it addresses how the president and/or congress can instruct US federal courts to enforce international tribunal judgments. As the article points out, foreign and international legal norms, particularly Europe’s civil law Precautionary Principle, can be enshrined as US law in one or more of several ways, each of which Harold Koh approves of.
Please see and share with your colleagues the following press release:
http://news.yahoo.com/s/usnw/20090505/pl_usnw/itssd__americans__constitutional_rights_will_be_trampled_unless_congress_convenes_public_hearings_on_the_un_law_of_the_sea_conv
ITSSD: Americans’ Constitutional Rights Will Be Trampled Unless Congress Convenes Public Hearings on the UN Law of the Sea Convention
I look forward to receiving your response and your impressions.
Regards,
Lawrence Kogan
Institute for Trade, Standards and Sustainable Development
at 7:23 pm EST Lawrence Kogan