Footnote Filching and other Unsavory Practices in the US Supreme Court: Conclusion

I understand full well why human rights-minded people in the US feel the need to defend the Hamdan decision. It was, as Dean Harold Koh put it, an attempt at setting the world right after the Bush administration’s assertions of ever increasing executive powers and its decision to keep hundreds of people in legal limbo. I certainly sympathize with that, and there is no disagreement on my part when it comes to the substantive result (however fleeting that might be). Yet, I hope that I have managed to show in my previous posts that the road the Court took to get to that result is a dubious one, both methodologically and from a purely technical legal standpoint.

Nobody expects the Justices of the Supreme Court to be experts in everything, not even international law in general, let alone a branch of international law which as hyper-specialized as is IHL. It is, however, amateurish at best to rely so completely on an amicus brief as they did, as even that brief cannot be fully understood without at least reading the primary sources, such as the ICRC Commentaries.

This amateurism is only augmented by the fact that Hamdan was delivered only one day after the Supreme Court’s Sanchez-Llamas decision, in which the majority of the Court for no good reason snubbed the International Court of Justice, going to such lengths as to accuse the ICJ of failing to comprehend the basic framework of an adversarial system. In a wonderful example of judicial overkill, the opinion written by the Chief Justice also cited Marbury v. Madison for the proposition that it is emphatically the province of the judicial department, headed by the one Supreme Court, to say what [in this case international] law is. Such an assertion of authority borders on the arrogant when the Court lacks the expertise in international law to back it up.

A comparison between the Israeli Supreme Court and the US Supreme Court would be very instructive in that regard. Setting aside the fact that the Israeli Supreme Court was far more respectful of the ICJ in its second decision on the wall/security barrier in the occupied territories than the US Supreme Court was in Sanchez Llamas, the Israeli Court’s understanding of international law clearly outstrips by far its US counterpart. One only need take a cursory glance at the Israeli Supreme Court’s recent Targeted Killings judgment to see the sheer breadth of the sources that the Court has consulted, and compare it to the US Supreme Court’s paucity of authorities in Hamdan, all of which it either misinterprets or miscites. Not only is deciding on complex issues of international law without understanding the basics wrong as a matter of principle, but —it also exposes the Justices to criticism that they are using international law as a mere instrument in purely political decision-making. I think we would all agree that this is something to be avoided.