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

by David Sloss Mike Ramsey and Bill Dodge

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.

http://opiniojuris.org/2011/07/27/international-law-in-the-u-s-supreme-court-a-response-to-professors-anderson-rabkin-and-martinez/

One Response

  1. I look forward to reading the book in due course.  I must say that this does appear to be “insider doctrinal theory” at several levels.  From a perusal of the authors and their work  I am dismayed there is no Jordan Paust or Hank Richardson.  Among the authors there are persons with whom I have had the pleasure to duel who demonstrated an almost visceral hostility to international law.  Yet they are welcomed to participate in such an oeuvre and their words will wend their way prominently through future thought spheres. 

    In 2011, I must say that I am amazed that in a country that can after all these years elect a black President, there are no black, hispanic, native-american, or arab-american scholars and only one asian-american scholar who are deemed worthy enough to be permitted to participate in this type of project. 

    How different would such a book have looked one hundred years ago?  Only on gender.  More than 50 years after Brown – just to pick one watershed – is this what the elite visions as inclusive academic dialogue on the American Supreme Court? 

    Is this what a multinational England’s Cambridge and Oxford desire?

    The book almost reflects in a weird way both the absence of color and the presence of gender dominance among the justices who are its subject.

    If one goes back to Henry J. Richardson III’s  – African-Americans and International Law: For Professor Goler Teal Butcher With Appreciation Tribute, 37 Howard L.J. 217 (1993-1994) one can see 17 years ago names like Adrien Wing, Max Chibundu, Ruth Gordon, Craig Jackson, and F. Michael Higginbotham.  I know these persons are alive and well and remarkable – yet we do not see their names among this stellar group.

    This brings me back to Duncan Kennedy’s, Legal Education and the Reproduction of Hierarchy that I read in 1983 – the relentless reproduction of the same asphyxiating and very narrowly drawn American groupthink on international law.  Speak that way and one can ascend to the heights is the message.

    Or maybe it is this thing so aptly described in that Tribute:

    “The unease likely relates to feelings resonating from deep within American history that “black folks” ought to stick to “civil rights” – the area where they “belong”- and not cause trouble in those areas of public policy directly related to national security.”

    I fear that once again I will read a book now on my Supreme Court and international law that will provide another iteration of what David Wilkins might term “bleached” law – such a narrow range that comforts the elites in their perception of what is important but does not acknowledge in more than a perfunctory sense what roils in those Supreme Court words.

    Even the definition of what are “international law” cases I suspect will be a subject of contestation.  The shadow of human rights flows way back in American history into the ante-bellum period though the justices might not have the ability or temperament to dare to recognize the humanity of slaves or native-americans.

    And, of course, the thing is that I am 55 years of age and just wondering how is it possible that so many people who I know are good people go through these years and at the end of the day reproduce with new faces an increasingly less representative cohort.  And some of those in the cohort, come from the most reactionary aspects of scholarship about international law.

    I regret if this is difficult for many fine persons writing in that book to read, but I say it not out of any hate but out of a deep abiding love for the possibilities that are left unseen because of the deep blinders that appear not able to even be perceived, let alone addressed.

    Do not make waves that might disturb the bonhomie at the top - this is one way collegiality that is an old game that scratches again at an old old wound in the American soul and the american project.

    Best,
    Ben

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