International Law in the U.S. Supreme Court: Introduction

On behalf of myself and my co-editors David Sloss and William Dodge, thanks to Opinio Juris for hosting this book discussion.  As readers of this blog know, the twenty-first century’s first decade was an extraordinarily active one for international law in the Supreme Court.  In the debates about leading cases such as Medellin v. Texas and Sosa v. Alvarez-Machain, we noticed that each side invoked the Court’s historical practices regarding international law in support and accused the other side of radical departures.  Indeed, the rhetoric of the criticisms can hardly be overstated: to some, the Court was abandoning longstanding commitments to international law; to others, the Court was allowing international law to invade domestic law at the expense of traditional notions of national sovereignty.

We also noticed that these competing claims were sometimes difficult to assess because there was no comprehensive account of the Supreme Court’s use of international law throughout its history.  This book, International Law in the U.S. Supreme Court: Continuity and Change (Cambridge Univ. Press 2011) seeks to fill that gap.  To carry out the project, we were fortunate to assemble a distinguished group of contributors with expertise in international law, foreign affairs law and legal history, each of whom contributed one or more original essays to the book.

The book’s organization is broadly chronological, beginning in Part I with an assessment of the Court’s use of international law from the Court’s inception to 1860.  Parts II through IV cover, respectively, the years from the Civil War to the end of the nineteenth century (1861-1900); the first half of the twentieth century through World War II (1901-1945); and the post-war years to the century’s end (1946-2000).  Part V examines the leading post-2000 cases in light of historical practice.  Although the dividing lines between historical periods are concededly somewhat artificial, the book is deliberately designed to devote substantial attention to the period from the Civil War to the end of World War II, which seems somewhat under-examined by prior scholarship as compared to the Founding era and the modern period. 

Within the chronological periods, the book further subdivides the Court’s treatment of international law into substantive categories: treaties, direct application of customary international law, and the use of international law in constitutional and statutory interpretation.  For each of the periods before 2000, it also includes a chapter of historical commentary addressed to wider political, legal and social developments.  For the post-2000 period, recognizing that it is more difficult to achieve historical perspective on recent decisions, it features more opinionated and provocative essays designed to present a range of reactions to the leading cases.

A central theme of the book is “continuity and change.”  From its earliest decisions in the 1790s, the Court has used international law to help resolve some of the major controversies on its docket.  But the Court’s approach to international law has changed markedly over time.  In general, our study finds that there was substantial (though not complete) continuity through the nineteenth century, and that from the beginning of the twentieth century forward substantial changes occurred, such that few aspects of the Court’s international law doctrine remain the same in the twenty-first century as they were two hundred years ago.

While the book provides an account of what changed and when, it does not attempt a systematic account of why those changes occurred.  We hope our account of how the Court has used international law in its decisions will form the basis for broader inquiries concerning why the Court did what it did, and to what effect.

We look forward to the discussion.