International Law in the U.S. Supreme Court: Resisting the Thrall of the Grand Narrative

by Harlan Cohen

First, let me start by thanking Duncan and the entire OJ crew, as well as David Sloss, Mike Ramsey, and Bill Dodge, for the opportunity to engage this amazing project. The book is an extraordinary accomplishment, magisterial in scope yet elegant in execution. Pulling together the material here – over 200 years of jurisprudence, countless decisions, and essays and critiques from the leading, but often conflicting, voices in the field (each of whom deserves credit in his or her own right) – to create what will likely become the standard starting point for discussion of international law and the Supreme Court is worthy of great praise and admiration. Authors of the response essays included within the book noted the difficulties responding to three carefully constructed chapters. Responding to the entire book is an even more daunting and humbling task.

One of the challenges in responding to a project like this is not to rewrite (or re-edit) the book as you would have. Any project like this requires difficult choices about tone and scope, what to include and what not to. In this case, the editors have chosen comprehensiveness and inclusivity over detail, the broad sweep of the epic over intricacy of the character study. This is a laudable choice. As they suggest, the literature is littered with careful portraits casting specific cases in starring roles; what’s needed is something that ties them together and puts them in context, that scans the cast of extras to see which might deserve a speaking role.

The editors’ choice, though, carries risks, particularly for the reader. Looking across over 200 years of history, the book constructs a grand narrative of “continuity and change.” It’s easy for the reader to get swept away, and the danger of such a grand narrative, even such a modest one, is that it can obscure as much it reveals. The instinct when looking at so many cases over such a long period is to try to draw a narrative line through them, to tell a story that brings them together and makes sense of them. In this case, skimming along the surface of these decisions, the instinct is to give great weight to their references to international law and to link them together in a chain. Moreover, the seemingly modest story here, “continuity and change,” actually amplifies this instinct. Finding “continuity and change” is the common-law lawyer’s method. Related and unrelated precedents are strung together to argue that particular results are consistent with doctrine; precedents are distinguished to argue that they are not. In other words, it is already the lawyer’s instinct to find the broader narrative described here. (The book’s battles in later chapters to brand the “War on Terror” cases or Medellin/Sanchez-Llamas instances of either continuity or change reflect the structural similarity of the historical and legal arguments.)

The danger for the reader in succumbing to the grand narrative is that the outcomes of these cases start to look over-determined. What gets lost is that each case was a battle either side could have won, that a decision’s references to international law might have as much to do with specific procedural history, the other cases decided that day, or the particular justice assigned as with the underlying substance of the case or doctrine. The personality and experience of individual justices, hinted at in portraits of Justice Sutherland or references to international roles played by Jay, Marshall, Taft, Hughes, and Jackson, recede into the background. Similarly lost is the more recent politics of counting to four (for certiorari) or five (to reach a decision) and the complex relationship between the Supreme Court and lower courts that results – an issue hinted at in discussions of the ATS, Act of State and self-execution doctrines, the presumption against extraterritoriality, and clearly present in the post-Boumediene role of the DC Circuit.

Such a grand narrative also risks suggesting a purposive Court that is as thoughtful about international law’s use over time as the scholars studying it. (There are exceptions, like Erie’s effect on customary international law, where such suggestions become harder to maintain.) It may locate a pattern in random coincidence or where the use of international law language is merely epiphenomenal. It may also flatten the distinction between references to international law, obscuring the stories of how they got into the opinion or whether they accurately reflect international law of the time at all (an issue hinted at in discussions of Hans v. Louisiana’s view of sovereign immunity). What gets lost, in turn, is whether international law is truly a driver of the decision, an instrumental tool to achieve a desired end, a smokescreen for some other argument, or a make-weight.

Here, in this book, the risks of the grand narrative are reinforced by the book’s periodization. The editors have chosen a series of periods, 1776-1860, 1860-1900, 1901-1945, 1946-2000, and after-2000. One could quibble with the exact periods, but the choices are certainly reasonable. What needs to be recognized is that these choices matter, that periodization can itself drive particular narratives. (Think of Eric Hobsbawm’s “Long Nineteenth Century” as a narrative-framing device.) Grouping cases from 1946-2000 can create a Cold War narrative of American power projection as much is it might reveal one. One could certainly imagine different narratives emerging if cases were grouped as “wartime” or “peacetime” or by groups of justices (e.g., FDR’s wartime court). In this book’s case, the choice of long periods marked by great changes in domestic politics and court composition buttresses the “continuity and change” narrative of the overall book, encouraging author and reader to draw connections between events rather than to distinguish them.

To their credit, many of the authors seem sensitive to the narrative’s thrall and provide hints at how the story might be complicated. The editors have also wisely included commentary chapters that can challenge the narrative. But the narrative pull of the overall book is hard to fight.

To be clear, this is meant as a note of caution in using the book, not a criticism of it. The editors and authors have provided an extraordinary resource. The culmination of the contributors’ years of research and reflection, the book catalogues and clarifies much of what we know about the Supreme Court’s engagement with international law. In so doing though, it also illuminates new avenues to explore. For the reader, this book must be seen as the beginning rather the end of that inquiry.

http://opiniojuris.org/2011/07/25/resisting-the-thrall-of-the-grand-narrative/

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