Voters Against Democracy
The Roots of Autocratic Resurgence
Justice Stephen Breyer of the U.S. Supreme Court has long been known as the most cosmopolitan justice—the justice most familiar with the laws of other nations and most concerned with how U.S. courts can cope with those laws when they impinge on American national interests or are invoked in U.S. courts. In his new book, The Court and the World, he sets forth his views on the interaction between the U.S. legal system and the legal systems of other countries.
The book is insightful, clearly written, well informed, free of legal jargon, and accessible to a lay audience as well as informative to lawyers, judges, and law professors. Its principal weakness is its almost exclusive focus on decisions by the Supreme Court. The Court is an atypical judicial body in that it tends to decide relatively few cases in most of the areas of its jurisdiction, including the intersection between U.S. and foreign law. Those few cases tend to generate disagreement within the Court and uncertainty as to what exactly the law in a given area should be. It’s difficult to get a coherent sense of a body of law from a handful of Supreme Court cases; it might have been better to borrow material from summaries in treatises of the relevant legal doctrines and their applications.
But Breyer’s focus on the Supreme Court does cast light on what Supreme Court justices have learned and can learn from foreign legal practices and what foreign judges can learn in return. As Breyer explains, the Supreme Court has evolved a complex set of rules for deciding constitutional cases, especially those involving the application of the free-speech clause of the First Amendment. Such rules are not derived or derivable from the text of the U.S. Constitution, but what is more objectionable about them is that they are nonsense—although, of course, Breyer does not characterize them in that way. The rules go by such names as “strict scrutiny,” “heightened scrutiny,” “intermediate scrutiny,” and “rational-basis review,” in order of diminishing rigor of judicial review. The rules also frequently invoke such terms as “overinclusive“ and “underinclusive,” “narrow tailoring,” “least restrictive means,” “compelling interest,” “viewpoint-based regulation” versus “content-based regulation,” and “fundamental rights.” All of this is window-dressing: the outcomes of constitutional cases are driven not by legal jargon but by the justices’ ideological views and a rough balancing of the costs and benefits of alternative outcomes.
The courts of the European Union, by contrast, follow a much simpler approach, known as “proportionality.” They ask, Breyer explains, does “the [regulatory] limitation” on private conduct “impose a restriction that is disproportionate to the legitimate interests the government seeks to achieve?” As Breyer points out, answering that question “requires the judge explicitly to balance the harm to the protected interests (e.g., speech) against the need for the limitation to protect a critically important objective.”
So far, so good; but Breyer doesn’t seem to have the full courage of his convictions—or, more likely, a desire to reject jargon that has become orthodox in U.S. constitutional decision-making. He makes plain that he does not intend to abandon that jargon; rather, he plans to add “proportionality” to the terminological stew. But the last thing the Supreme Court needs is more legalese. Proportionality, or, what seems equivalent, the balancing of costs and benefits, could well replace the current system (I would like to see it do so, and I imagine that Justice Breyer would as well) but cannot supplement it coherently, because the two frameworks are inconsistent.
In addition to comparing the Supreme Court’s rules with the European approach of proportionality, Breyer catalogs differences between the U.S. legal system and the systems of foreign countries, such as India, Switzerland, and the United Kingdom. But he makes no attempt to arbitrate the differences among them. For example, although fluent in French, he fails to discuss one of the most questionable features of European law: French dominance of the European Court of Justice, whose judges are appointed by the EU member countries. The French government supplies almost all the référendaires, or law clerks, of the court, and the vast majority of them are French lawyers. Many of the judges, however, being from non-French-speaking countries, have limited knowledge of the French language, leaving them largely at the mercy of their law clerks.
The last thing the Supreme Court needs is more legalese.
The bulk of Breyer’s book, however, is solidly argued and will be useful to American lawyers and judges. In one section, for example, he discusses the application of American law to acts that occur in foreign countries. Suppose two foreign companies manufacture similar products, export them to the United States, and agree to sell them at the same price, thus eliminating competition between the two products, to the detriment of American consumers. They are deliberately injuring Americans, and such injurious conduct is usually deemed sufficient to trigger the applicability of U.S. antitrust law, even though enforcement may be difficult or even impossible (it may be impossible to obtain jurisdiction over the companies in an American court, for example). But to enforce U.S. antitrust law against such suppliers would, as Breyer emphasizes, violate “comity”—the respect that nations are expected to accord other nations in order to minimize international friction and conflict.
No formula has been devised to draw the line between permissible and impermissible extraterritorial applications of U.S. antitrust or other regulatory laws. The Supreme Court’s approach, as described by Breyer, is distinctly ad hoc: it seeks harmony between overlapping U.S. and foreign laws, a goal that does not lend itself to the kind of formulaic approach that lawyers and judges prefer.
A related point, although Breyer doesn’t make it, is that balancing, or proportionality, may be the best, and possibly the only defensible, way of determining where to draw the line between U.S. and foreign interests and consequences in order to place some, but not too many, limits on the foreign reach of U.S. law.
Amid his discussion of U.S. commercial laws that overlap or conflict with foreign laws or interests, Breyer includes a long section on the Alien Tort Statute, enacted by the U.S. Congress in 1789, which grants U.S. federal courts jurisdiction over tort suits brought by foreigners if the tort was “committed in violation of the law of nations or a treaty of the United States.” The term “law of nations” refers to legal rules that are recognized as valid by all or most nations and so constitute genuinely international law. It is actually quite difficult to identify such rules, owing to the legal diversity among nations, and it seems odd to allow a foreigner to sue in a U.S. court to obtain a remedy against the consequences of a tort that was committed in another country, that no American citizen or U.S. corporation may have been complicit in, and that may have no effect in the United States. Breyer makes clear that the application of the Alien Tort Statute is a mess. In fact, it is high time the statute was repealed.
Breyer next focuses on the interpretation of treaties. He starts by stating that “interpreting treaties is usually a straightforward legal enterprise.” The U.S. Supreme Court, he writes, “will normally proceed in much the same way as when it interprets any other legal text. It begins with the language, which it interprets in light of the treaty’s context and purposes; it considers the treaty’s drafting history; and it takes account of precedent.” In fact, a dispute over a legal text—whether a statute, a regulation, a contract, a constitutional provision, or a treaty—rarely provokes serious litigation unless the dispute is over an issue that the drafters of the text did not foresee. And if they did not foresee it, then neither the language of the text nor its history will reveal how they wanted the issue resolved. In such cases, what is called “interpretation” is really completion—plugging a hole that the legislature left in the text—although judges rarely acknowledge this lest they come across as impolitic, belittling legislative foresight.
Breyer doesn’t seem to have the full courage of his convictions—or, more likely, a desire to reject jargon that has become orthodox in U.S. constitutional decision-making.
What Breyer rightly emphasizes is that the interpretation of a treaty, like its initial drafting, must take into account the views and interests of both (or all, if it is a multinational treaty) the nations that are parties to it. This makes it all the less likely that such litigation will be resolved by interpretation rather than through a compromise of the interests of the nations. Consider the treaty that Breyer discusses at greatest length—the Hague Convention on the Civil Aspects of International Child Abduction, which 93 nations are party to and which entered into force in 1983. Suppose that an American husband and a Chilean wife who have been living together in Chile with their child get divorced, and the husband carries the child off to the United States. The wife wants the child returned to Chile. Should the husband’s conduct be deemed abduction? Which country’s courts should decide the issue?
There are no settled answers to such questions. There can be good and bad reasons for one parent to move his or her child to another country over the objection of the other parent, but the countries may differ in their notions of good and bad. If the convention is to be applied with reasonable uniformity, the courts of the nations that are party to it will have to be sensitive to one another’s laws and customs. No more exact formula for resolving disagreements over the convention seems available.
Breyer has written a lucid and scholarly book about the relationship between the United States’ legal system and those of other countries. The book overemphasizes U.S. Supreme Court decisions, and many readers may be more interested in the current state of international law than in the decisions that have made it what it is (or what the U.S. government deems it to be). Nevertheless, on the whole, the book is a useful contribution to a subject of large and growing importance that has received limited consideration from jurists of Breyer’s stature and global perspective.