International Law in the U.S. Supreme Court: A Response to Professors Anderson, Rabkin, and Martinez

Ken Anderson, Jeremy Rabkin, and Jenny Martinez expand in various ways on the concern about constructing a grand narrative introduced on Monday by Harlan Cohen. Anderson discusses a number of questions that might have been used to frame the narrative: legitimacy, the use of international law as a sword or a shield, sovereignty versus internationalism, authority and deference, hegemony, and whether international law carries any real weight at all. Rabkin wants to know more about why doctrines changed and seems particularly interested in the changing content of international law and the rising power of the United States (Anderson’s hegemony question). Martinez also wants to know more about the why but on a more micro level, and does a wonderful job of unpacking in a few paragraphs the context of The La Jeune Eugenie (1822) and The Antelope (1825).

On the value of “insider doctrinal history,” to use John Witt’s phrase from Chapter 5 of the book, Harlan Cohen has already come to our defense, and more eloquently than we would have. Jenny Martinez also usefully points out that lawyers and historians often approach the past with different purposes and in different ways, but both equally valid. We would add just a few additional points, drawing on our long engagement in this project.

First, there a great deal of nuance and context in the book. On the transition from natural law to positivism, for example, David Bederman’s chapter on customary international law from 1861 to 1900 provides a fascinating account of the mixing of natural law and positivist language during the late nineteenth century and suggests that the change to positivism was largely rhetorical, The Paquete Habana being the leading exception where the Court really did look to state practice to determine the content of customary international law.

Second, there is a great deal of attention to “why” questions in the book. Individual authors address a number of the questions that Anderson raises and others too. What the book does not attempt to do is to view the history of international law in the Supreme Court through a single lens. Had the editors tried to impose a single viewpoint on our strong-minded contributors, we would have faced open rebellion. Indeed, the three editors could not agree among ourselves on the why questions (we initially tried to do so in writing the conclusion, but abandoned the attempt as futile with the third draft). Even if we had succeeded in overcoming these obstacles, we doubt we would have pleased our reviewers. “Whys” are always more contestable than “whats” and “whens,” and had the book attempted a more coherent account of why the Supreme Court’s international law doctrines changed, we would no doubt be reading posts about how we were wrong!

To have facilitated discussions of these questions was precisely our purpose in putting together this book. We are very grateful to Roger Alford, Ken Anderson, Harlan Cohen, Andrew Kent, Jenny Martinez, and Ingrid Wuerth for the keenness of their insights, the generosity of their praise, and the gentleness of their criticisms. We are grateful to all of our wonderful contributors. And, last but not least, we are grateful to Duncan Hollis and the OJ crew for having provide a forum for this discussion.