International Law in the U.S. Supreme Court

Thank you for the opportunity to comment on International Law in the U.S. Supreme Court, edited by Bill Dodge, Mike Ramsey and David Sloss. Mike has already described the book’s purpose and organizational structure in a post from this morning. My post focuses on some of the book’s overall strengths and perhaps weaknesses.

Edited volumes are hard to do well, and are often little more than a hit or miss set of loosely connected essays. This book, by contrast, is extremely well-edited and the individual contributions are very carefully linked to the book’s overall goals, as well as to other chapters. The editors are everywhere present: collectively they drafted a substantive first and last chapter, and all three also make major contributions through other chapters in the text. The editors’ obvious efforts to keep the other authors “on task” pay off for the reader with a well-organized, thorough doctrinal treatment of international law in the U.S. Supreme Court. It will make an excellent reference volume, especially as each chapter includes cases infrequently discussed in the secondary literature. I also applaud the decisions to focus on cases from the Civil War on, and to include three concluding essays by historians for each of the three historical periods examined in the book.

Some aspects may at least represent missed opportunities. Let me note that what follows takes the book’s central mission on its own terms; that is, I do not question the decision to focus on doctrinal developments in the Supreme Court (as others already have, see Chapter 5 by John Fabian Witt). This extremely distinguished group of authors has, to varying degrees, staked out contemporary doctrinal claims about U.S. courts and various aspects of international law. Not surprisingly, these claims re-emerge in one form or another in some of the historical accounts the authors provide. To focus on the editors (having just heaped praise upon them), for example, an introductory chapter co-authored by David Sloss discusses whether treaties afforded remedies to individuals, a chapter by Mike Ramsey on the period 1901-1945 focuses skillfully on Erie and three ways of understanding customary international law in its wake, and a chapter by Bill Dodge views the Sabbatino case in terms of customary international law as federal common law. Some of this felt a-historical — the ghosts of the Medellin and Sosa future looming over the narrative – and it also left me wanting a broader perspective (even just doctrinally). We might think of Sabbatino as a Cold War case, for example (to pick up on Mary Dudziak’s broader point about this volume made at an ASIL Annual Meeting Panel), or about the rise of the administrative state, increases in executive power, doctrinal developments in international law, the impact of foreign policy on specific cases or doctrinal developments generally. To be sure, these issues and others like them are mentioned at places throughout the book – Roger Alford, Ralf Michael, and Paul Stephan’s contributions come to mind in particular.

One might also quibble with the last section of the book, not with the excellent contributions themselves, but with whether this organization is the best way to handle the most recent cases and to pose questions moving ahead. But there is no doubt that the editors and authors have created an important book that provides an outstanding basis for other scholarship on both the history and future of international law in the U.S. Supreme Court.