International Law in the U.S. Supreme Court: A Reply to Professors Cohen and Wuerth

Harlan Cohen and Ingrid Wuerth have provided characteristically insightful comments about the overall strengths and weaknesses of the book. Cohen cautions that its “grand narrative” may make the outcomes of particular cases seem “overdetermined” and suggest that the Supreme Court is more “purposive” about its use of international law than is actually the case. Wuerth tactfully notes that the editors’ and authors’ “contemporary doctrinal claims” may have influenced the historical accounts.
The editors of this volume did indeed attempt to construct a “grand narrative” because it was through that narrative that we hoped to discover what had stayed the same and what had changed in the Supreme Court’s international law doctrine. But we did not know the whole story when we started and we learned much along the way, particularly about the periods between 1860 and 1945, which have received less scholarly attention. To cite just two examples, we were surprised by the strength of the Court’s treaty jurisprudence well into the twentieth century, a period Michael Van Alstine’s chapter calls “the golden age of treaties.” We were also surprised by the eclipse of customary international law in the early twentieth century as the nineteenth century staples of international law—“pirates, prizes, and privateers” in Mike Ramsey’s phrase—largely disappeared from the Court’s docket. Piecing together the grand narrative was made much easier by the incredibly talented group of authors we were privileged to work with. We think (and Cohen does not disagree) that there is value in knowing what changed and when, but we also agree with him that there is value in examining the trees that make up this forest. We hope the book may serve as a starting point for scholarship that expands upon, explains, and even challenges points in the narrative.
Wuerth’s concern that the doctrinal controversies of the present (and the contributors’ views on them) may cast a shadow on the book’s treatment of the past is certainly a fair one and one that we worked hard to minimize. It helped that the book’s three editors do not agree about all the doctrinal controversies of the present, and we deliberately chose authors who represent a spectrum of views. We also wrestled (almost) all references to future events into the footnotes. But it is nearly impossible to avoid the shadow of the present completely. To take my own chapter on customary international law from 1946-2000 as evidence, I focused on the interplay between Sabbatino and the alien tort cases, particularly on the question of federal common law, because that is what so much of the scholarship of the past 15 years has been about. Had the controversies of the present been different (the methods for determining customary international law, say), this chapter would undoubtedly have had a somewhat different focus. (On the other hand, the federal common law theme also ties together the interstate boundary cases of the second half of the twentieth century, about which I learned more than I ever thought I would.)
We look forward to continuing the discussion and will take the opportunity to respond when it seems appropriate.