International Law in the U.S. Supreme Court: A Handful of Grand Narrative Questions

by Kenneth Anderson

Harlan Cohen raises an important caution against being swept up in the attraction, indeed intellectual comfort, of an intellectual grand narrative that can give apparent coherence to a topic as broad-ranging and heterogeneous as international law in the Supreme Court.  The point is very well taken, particularly as it runs to the framing of historical periods; the device of historical periods is useful – essential even – to a point, but only if it is taken as the starting point for sorting things out and not the final arbiter of interpretation, especially on any particular matter.

That said, there is more than simply an organizational imperative in asking some framing questions.  I’d like to raise a couple of them here, as a preface for the kinds of issues that most intrigue me in looking at this marvelous study.  They are not in any logical order, and one might easily argue that I’ve followed a kind of narrative imperative in the ones I’ve chosen, but they still seem to me important in practically any kind of historical study of this area.

Legitimacy.  By whom and to whom is the invocation of international law by the Court intended to be a mechanism of legitimation?  When the court invokes international law, it might be that the use – irrespective of whether it is seen as controlling the outcome or not – has a legitimation function.  But the intended audiences of that legitimation device might be, on the one hand, audiences external to the United States, the community of nations, other leading sovereigns, and so on.  But it might be, on the other hand, aimed at showing an internal audience that the decision of the Court is in accordance with, or at least takes account, of international law.  Or it might be aimed at both; they are not mutually exclusive.  But the many ways in which the law serves a legitimating function in American society is surely something that will have some expression in the use of international law, as well as the meaning and role given to it, by the Court.

Sword or shield? Is international law invoked by the Court, at least in public law situations and not purely private economic law ones, as a shield for protecting the US in its interests abroad, such as the problems of neutrality in the early Republic, or as a shield, for asserting US interests (and ideals) vis-a-vis other countries and the international community?

Protective of sovereignty or protective of internationalism? Tthe use of international law by the Court might be one that protects sovereign prerogatives, whether of the US or others, or might be a tool by which the Court seeks to situate the US in the community of nations in ways that circumscribe and cabin its traditional sovereignty.  Connected to the previous sword or shield question, the answers might vary with the place of the US in the wider world over time.

What institutional actors does the Court see as authoritative, if any? That is, authoritative in stating the content of international law.  Closely linked to that is the amount of deference, if any, given to one actor or another.  Of Special importance here is the State Department, of course; the question might also raise important inter-branch Constitutional questions that reverberate today.

Hegemony versus sovereign equality of states.  To what extent does the Court see international law as being the law of the “rising hegemon” and, alternatively, to what extent does it see international law as being the law of sovereign equality among states?  The question here relies on ideologically super-loaded premises about hegemony and sovereign equality; granted, and I won’t try to spell out a meaning for hegemony.  However, even without the ideological superstructure, it seems impossible not to ask what the Supreme Court’s deployment of international law means against the long-running backdrop of the rise of the United States from the late 19th century on; either as a recognition of that, including special privileges but also special obligations, or a check on that – with a nod to the constant strand of US history devoted to isolationism and anti-hegemony. The question takes on some urgency today, at least if one takes at all seriously the suggestion I have sometimes made on this blog – that certain “international law”-looking things, like the Alien Tort Statute, are actually better understood as the “law of the hegemon.”

The flotsam and jetsam of ideology? I retain enough of my youthful historical materialism to think that one might argue that the deployment of international law by the Court has no independent historical weight of its own.  I don’t mean this in a radically skeptical, external way – i.e., I don’t mean it in the sense of, gosh, international law has no meaning because the world might be just a dream.  It is not idle or silly skepticism to ask, about history as long and detailed as this, whether the drivers in this particular matter are not really from outside the Court’s jurisprudence.  Put another way, if one were to ask one of the greatest of the living historical materialists, the editor of New Left Review, Perry Anderson, to review this book, what would he say?  Okay, I won’t try to address that question in any comments I make on individual chapters in this book.  But I do think the question lurks and lingers, and is not the occasion for intellectually idle skepticism that it often is.

This is a marvelous book that will be an indispensable focus of scholarly discussion of the Court and international law for a long time to come.

http://opiniojuris.org/2011/07/26/international-law-in-the-u-s-supreme-court-a-handful-of-grand-narrative-questions/

One Response

  1. The second ‘shield’ in that paragraph (third including the subheading itself) is meant to be sword, perhaps?

    I am not sure if I understood your last point, but if you meant that the Court in some cases (or in the case of some judges) simply uses international law as it when it (or they) feel doctrinally compelled to because that is the appropriate law to apply/consider; without any other conscious ‘rationale’, well I agree that this is almost certainly the case sometimes. 

    If for example Roberts or Alito use international law I would be fairly confident that it would be either for that reason, or perhaps in certain cases to emphasise their reasons, as in: the answer is X for the following non-international law reasons, and thus we so hold, but even if you do consider international law the answer is the same.

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