Pledging American Exceptionalism: US Supreme Court Justice Gorsuch on International Law

[Anthea Roberts is an Associate Professor at the School of Regulation and Global Governance, Australian National University.]

American exceptionalism is nothing new. Nor are debates about whether it is appropriate for US courts to look to foreign or international law, particularly when interpreting the US Constitution. Yet now-Justice Gorsuch’s recent testimony on the issue during his confirmation hearing still took my breath away. You can hear the question posed and his answer here (the exchange is also transcribed below). I think that every international lawyer should watch this clip. It’s exceptional …

Question by Sasse: As a sitting Supreme Court justice tasked with upholding the US Constitution, is it ever appropriate to cite international law and, if so, why?

Answer by Gorsuch: It’s not categorically improper. There are some circumstances when it is not just proper but necessary. You’re interpreting a contract with a choice of law provision that may adopt a foreign law. That’s an appropriate time to look at any choice of law provision by any party in any contract. Treaties sometimes require you to look at international law by their terms.

But if we’re talking about interpreting the Constitution of the United States, we have our own tradition and own history. And I don’t know why we would look to the experience of other countries rather than to our own when everybody else looks to us. For all the imperfections of our rule of law, it is still the shining example in the world. That’s not to say we should sweep our problems under the rug or pretend that we’ve solved all of the problems in our culture, in our society, in our civic discourse. But it is to say that we have our history and our Constitution and its by “we the people.”

And so, as a general matter, Senator, I would say it is improper to look abroad when interpreting the Constitution — as a general matter.

So what do I find remarkable about this interaction?

First, the conflation of international law and foreign law is disconcerting. When asked about whether it is appropriate to cite to international law, Gorsuch immediately turns to choice of law provisions in contracts. But that is typically a question of foreign law, not international law. Certainly, both are non-American law. Yet the two of them raise distinct questions, particularly given that the United States contributes to the formation of international law, is bound by international law, and has hooks in its Constitution for looking to international law. As for when Gorsuch says that treaties sometimes require you to look at international law … I feel like telling him that, actually, treaties are international law. I have been critical elsewhere of how the US Supreme Court can interpret a treaty without even referencing the Vienna Convention on the Law of Treaties.

Second, the statement “I don’t know why we would look to the experience of other countries rather than to our own when everybody else looks to us” is particularly striking. On a descriptive level, there is something to what Gorsuch says. Academics and courts in many states regularly look to US case law, but the same is much less true in reverse. I find clear evidence of this asymmetry in my forthcoming book Is International Law International? (OUP, 2017) where international textbooks from around the world look to US case law while US international law textbooks look to … US case law.

But on a normative level, I find this statement troubling. Why look at the experience of other states? For me the answer is simple: because you might learn something. You don’t have to be bound by what you find, but it might be instructive given that other states have often faced similar issues and the United States does not have a monopoly on good ideas. I fully accept that judges in a state can privilege that state’s own history and tradition when interpreting the law and that this might be particularly appropriate when interpreting that state’s constitution. But I don’t think that this requires them to ignore the histories and traditions of everyone else.

The double standard implicit in what he is saying is also grating. Instead of taking the position that “all states should look to their own history and tradition,” Gorsuch instead endorses the idea that other states not only do look to the United States (descriptive claim), but that they should look to the United States (normative claim), even though the US courts should not reciprocate. What is good for the goose is certainly not good for the gander.

Third, the next sentence is the kicker for me: “For all the imperfections of our rule of law, it is still the shining example in the world.” I find this exceptionalist rhetoric hard to stomach. It is also deeply ironic given that the whole world currently is looking at the United States and the Trump administration, but no one would say that this is because the United States represents the “shining example” of the “rule of law” in the world. In fact, the United States comes in 18^th out of 113 countries in the World Justice Project’s rule of law rankings, and the Economist recently downgraded the United States to being a flawed democracy, partly because of a loss of faith in democracy in the United States, particularly by the younger generation.

Of course, I am not the intended audience for Gorsuch’s remarks. He is clearly playing to a domestic, political audience, not a foreign, internationalist one. To my ears, Gorsuch sounds like he is pledging a fraternity, but the institution to which he is pledging is American exceptionalism. Although this topic is contentious in the United States, the idea that it might be appropriate or useful to cite to international or foreign law is uncontroversial in many other states. I can’t imagine many judges in other common law jurisdictions, like Australia, Canada or the United Kingdom, feeling the need to make this sort of pledge. Nor am I am aware of judges in civil law states, like France and Germany, making similar such pledges.

Even though Gorsuch is not addressing his comments to people like me, the nature of the internet means that I form part of his audience nonetheless. And I suspect that many foreign internationalists would have a similar reaction to me. This failure to value the practice of others and to engage in a dialogue is one of the explanations that David Law and Mila Versteeg give about their empirical finding of the declining influence of the United States in comparative constitutional law (another is that constitutions around the world are increasingly departing from, rather than following, the US model). This finding also contrasts with the rising influence of the courts of some other states that regularly engage in this sort of discourse, like Canada, Germany, India, South Africa and the United Kingdom.

Whatever your views on this clip, I think that this exchange would make a great classroom teaching tool because it succinctly sets out a particular perspective and provides a useful starting point for debate. I would be interested if anyone has a good counterpoint clip that pithily sets out the opposite perspective as the two would be great to pair. In the end, part of what we need to take away from this sort of exchange is just how different people’s starting points of analysis can be when it comes to this question and how these differences may vary considerably across states.