INTERNATIONAL LAW AND THE SUPREME COURT: It Could Be Even Better with More International Law

by Jeremy Rabkin

I’m grateful to the regulars at Opinio Juris for inviting me to comment on INTERNATIONAL LAW IN THE U.S. SUPREME COURT, because it’s an especially valuable work.

I admire the industry displayed by the contributors to this volume. They have gone through a vast number of cases, highlighting the casebook classics, but giving them the sort of detailed context not often provided in legal advocacy (let alone in casebooks). I admire the scholarly integrity of these contributors. There are well-argued “opinion” pieces in the later parts of the book, but the early chapters, tracing the Court’s case law in the 18th, 19th and early 20th centuries, seem to be straight assessments from months of “field research” in the U.S. Reports.

The most important “take-away” seems to be this: in earlier times, the Supreme Court was actually more engaged with international law and more independent in its engagement than it has been since the mid-20th Century. No one can read the early chapters without being convinced of this conclusion.

But what to make of it? This volume, for all its great merits, is less helpful than one might expect when it comes to drawing larger conclusions. And I think that reflects the way it frames its subject: it is so focused on the Supreme Court that “international law” itself recedes into almost undifferentiated backdrop. When the authors talk about “continuity and change” – the subtitle and organizing theme of this collection – they are rarely grappling with change (or continuity) in the wider patterns of international ordering. Most of the essays focus on American legal doctrines that variously embrace or limit or channel “external” obligations, without much inquiry into what actually were the predominant sorts of “international” claims in different eras.

Human rights law is the most obvious example. From the outset, American statesmen took it as “self-evident” that “all men” are “endowed by their Creator with certain unalienable rights” — but “to secure these rights governments are instituted … deriving their just powers from the consent of the governed.” It is not a small, incremental amendment to rephrase that as — “to secure these rights, international treaty structures are instituted … deriving their just powers from the consensus of legal experts in various countries.”

The essays by Paul Stephan (“Treaties in the Supreme Court, 1946-2000”) and Martin Flaherty (“Global Power in an Age of Rights”) mention, somewhat in passing, the dispute about the proposed Bricker Amendment in the 1950s. Neither essay pauses to consider how far the transformation of international law might have gone, if the U.S. had embraced human rights treaties and American courts deferred to international interpretations of these treaties. Perhaps it was not so surprising that the Court became more cautious about “international law” when the scope and authority of that “law” seemed to be reaching so far beyond the traditional “law of nations.”

Earlier generations saw “international law” as primarily a set of rules for interactions between sovereign states – and then, for the most part, conceived these rules as applicable only between “civilized” or “Christian” states in the western “community of nations.” In a nice example of where detailed inquiry pays off in this book, Duncan Hollis (in “Treaties in the Supreme Court, 1861-1900”) notes that that the Court (in his period) was far more likely to invoke constraints on treaties when the other party was a non-western entity, whose protests were easier to ignore. William Dodge’s essay on the late 20th Century (“Customary International Law in the Supreme Court, 1946-2000”) offers several instructive pages on the Sabbatino litigation (concerning confiscation of foreign property by the Castro regime in Cuba) without ever quite grappling with what “international custom” would mean in a world where communist and Third World states had reached majority status in the UN.

Toward the end of this volume, David Golove offers an intriguing essay (“The Supreme Court, the War on Terror and the American Just War Tradition”) which argues, among other things, that the Court’s recent rulings on detainee rights in Guantanamo should be seen as, in some way, extensions of early American experience where “many of the most delicate and controversial questions under the laws of war were subject to judicial resolution in prize proceedings.” But in those “prize proceedings” the overriding concern was to reassure the world’s great commercial and naval powers that American naval actions would not threaten the general flow of commerce on the high seas. There may be some analogies with today’s Guantanamo cases – even if they don’t directly affect the main lines of international commerce, don’t risk direct retaliation from larger powers, don’t turn on well developed case law among other major states. But if one looks at the larger picture of today’s “international humanitarian law” – in comparison with the law of war in the 18th or 19th Centuries – one would be more struck by “change” than “continuity.”

It would take more than one volume to give a full account of how international law has changed since the Eighteenth Century. It was reasonable for the editors of INTERNATIONAL LAW AND THE SUPREME COURT to impose a more limited focus for this volume. But even some of the particular history recounted in this impressive volume might be seen differently, with better (or merely, changing) perspectives on the larger story of what “international law” has meant in different eras.

– Jeremy Rabkin

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