A Fear of Foreign Law

Perhaps no other member of the US Supreme Court has such an affinity for matters foreign as Justice Stephen Breyer. Married to a British clinical psychologist, and himself a member of France’s exclusive Académie des Sciences Morales et Politiques, Justice Breyer has thought long and hard about the relationship between US and foreign law, and the result is his latest book, The Court and the World.

One suspects that the impetus for the book may have been the recent debates, within the Court and elsewhere, over whether foreign law (and foreign viewpoints) should have any influence on Supreme Court decisions concerned with domestic matters. In 2002, Justice John Paul Stevens, writing for the Court in Atkins v. Virginia, held that the execution of mentally retarded criminals was unconstitutional because of the growing “national consensus” that it constituted cruel and unusual punishment in violation of the Eighth Amendment. In a footnote, however, Justice Stevens mentioned in passing that

within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.

This provoked the ire of Chief Justice William Rehnquist, who, in dissent, sought “to call attention to the defects in the Court’s decision to place weight on foreign laws,” because “if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant.” In a separate dissent, Justice Antonin Scalia, in his inimitable style, stated that

the Prize for the Court’s Most Feeble Effort to fabricate ‘national consensus’ must go to the appeal (deservedly relegated to a footnote) to the views of…members of the so-called “world community,”…whose notions of justice are (thankfully) not always those of our people.

This might have seemed a tempest in a teapot. But three years later, Justice Anthony Kennedy, writing for the Court in Roper v. Simmons—which similarly held that execution of persons under the age of eighteen is unconstitutional because of a national consensus that it constitutes cruel and unusual punishment—effectively upped the ante by asserting that foreign viewpoints were indeed relevant. Justice Kennedy stated:

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty…. [At least since 1958], the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”

Dissenting, Justice Scalia responded that “the basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand.” He went on to point out the innumerable ways in which the US legal system differs from those of most other nations, including England. This in turn prompted Justice Sandra Day O’Connor, while otherwise dissenting from the majority’s holding, to add:

Nevertheless, I disagree with Justice Scalia’s contention…that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency.

This debate—which had also surfaced in the Supreme Court’s 2003 decision in Lawrence v. Texas holding laws against consensual sodomy unconstitutional—continues to this day. In Justice Breyer’s account, the views of Justice Scalia and his supporters provoke the one and only paragraph, in an otherwise remarkably balanced and dispassionate book, that borders on the peevish. Referring to those views, Justice Breyer writes:

It is, of course, possible that some version of the psychological phenomenon of displacement is at work. If you are upset about A, you may blame B. The critics, upset about the Court’s death penalty and sodomy conclusions, are quick at least in part to blame foreign law, here an innocent victim.

This may well be true; indeed, one hardly needs psychology to recognize that the particular appeals to logic and principle advanced in any debate are frequently chosen because they lead to a preferred outcome in the specific controversy at issue. Call it displacement, or even call it hypocrisy, the tendency is as endemic to judging as to any other human endeavor. But it is also irrelevant. If the argument is a good one, if it has the power to convince and persuade, the motive for advancing it is neither here nor there. The legal process as a whole, and judging in particular, are dependent on good reasoning, and if the reasoning is sound, the law cannot disregard it because it leads to an unwanted result in a particular case.

Justice Breyer recognizes this, and so he responds to the merits of Justice Scalia’s arguments in several ways, two of which may be singled out here. First, he notes, as did Justice O’Connor, that when it comes to determining something as broad and constantly evolving as what constitutes “cruel and unusual punishments,” consideration of the experiences and views of other nations, while they should never be dispositive of the decision of a US court, can provide a useful check on the reasoning of US judges. Few other clauses in the Constitution are so closely tied to evolving standards of morality as “cruel and unusual punishments,” and the many nations that share our basic moral values have often had to confront the same dilemmas that we face when determining which punishments are cruel.

Their views cannot dictate ours, for, as Justice Scalia and others rightly point out, that would be both undemocratic and beyond the power that our Constitution gives to federal judges. But it does not follow that we should purposely blind ourselves to the reasons and results that others facing similar problems have reached. What the Declaration of Independence calls “a decent respect to the opinions of mankind” counsels us to consider such opinions “for what they are worth.” In the process, they may well inform our own reasoning.

Second, and this is Justice Breyer’s most fundamental point, we judges cannot really escape considering foreign laws, foreign rulings, and foreign proceedings in a wide range of circumstances, for the international interconnectedness of modern life makes it impossible to ignore such matters. As he writes, “It is not the cosmopolitanism of some jurists that seeks this kind of engagement but the nature of the world itself that demands it.”

The rest of Justice Breyer’s book is designed to illustrate this sentence. In his first four chapters, he considers how the changing nature of war itself—and most notably the advent of a never-ending war against terrorism—has led even a conservative Supreme Court, however reluctantly, to become at least tangentially involved in placing limits on the executive’s conduct of war in ways that would have been unthinkable in a more conventional war. For example, the “it’s-not-my-department” approach that underlay the Court’s (shameful) approval of the domestic internment of American citizens of Japanese descent during World War II was replaced, in the 2008 decision of Boumediene v. Bush, with the extension of the writ of habeas corpus to even the non-US citizens detained in Guantánamo Bay, Cuba.

As several justices pointed out in that case, the War on Terror is a different kind of war, “the real risks, the real threats of [which] are constant and not likely soon to abate.” It does not follow that minimal judicial oversight of measures to combat terrorism must be suspended indefinitely. Rather, such questionable restrictions as might in the past have been excused or ignored by the Court as temporary wartime measures can no longer be exempted from judicial scrutiny.¹

Placing the Boumediene case in a still broader setting, Justice Breyer argues that the changes in the nature of modern war “are merely one particularly worrisome manifestation of the larger reality…of the ways, both good and bad, in which foreign actors and activity enter into our national life and create problems that we share with other nations.” Thus, in successive chapters, he considers the foreign reach of US statutory law, the increasingly complicated interpretation of international agreements (which have hugely proliferated since World War II), and even the role of US judges in advancing the rule of law abroad. The common theme is to illustrate his contention that US judges cannot avoid ever greater engagement with foreign and international law.

This thesis is not without its critics, both on the Supreme Court and elsewhere. Indeed, it is partly to avoid such engagement with international law that the conservative majority of the Supreme Court has in the past few years breathed new life into the so-called “presumption against extraterritoriality.” Under this doctrine (originally enunciated in 1909 by Justice Oliver Wendell Holmes Jr.), a federal statute is presumed not to extend to foreign conduct, even if the conduct in some respects has an impact on activities in the United States, unless Congress has clearly manifested its intention to deal with such conduct.

For example, in the 2010 case of Morrison v. National Australia Bank Ltd., the Court held that, because of the presumption against extraterritoriality, the federal securities fraud laws do not extend to schemes that are chiefly devised abroad but that nonetheless defraud US shareholders, unless the shares are sold in the US. A main reason for this result, the Court stated, was to avoid “the probability of incompatibility with the applicable laws of other countries”—in other words, to avoid grappling with the very issues that Breyer suggests cannot be avoided.

A particularly revealing extension of the presumption against extraterritoriality may be found in the Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co., in which Nigerian citizens who had received political asylum in the United States sued two foreign-based oil companies that had allegedly provided financial and other assistance to Nigerian forces that unlawfully occupied the plaintiffs’ land and used that land as a staging ground for murders, rapes, and other atrocities committed against Nigerians protesting environmentally unsound oil exploration activities. The case was brought in federal court in New York under a unique US statute called the Alien Tort Statute, enacted by the very first Congress in 1789. That statute reads in its entirety as follows:

The [federal] district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

Judge Henry Friendly, generally regarded as the greatest federal judge of the mid-to-late twentieth century, once referred to the Alien Tort Statute as a “legal Lohengrin,” because “no one seems to know whence it came.” In the first two hundred years after its enactment, the statute was used in only three cases. But in 1980 a federal court of appeals found it applicable to a suit brought by a Paraguayan woman living in New York against a Paraguayan policeman visiting New York who, the woman alleged, had tortured her brother to death in Paraguay. Subsequently, dozens of cases were brought under the Alien Tort Statute, increasingly against foreign corporations alleged to have been complicit in tortious violations—i.e., violations involving a tort, or act of civil wrongdoing—of international law committed abroad that injured noncitizen plaintiffs now resident in the US.

In Kiobel, however, the Court, invoking the presumption against extraterritoriality, concluded that the Alien Tort Statute applies only when the acts constituting the alleged tortious violation of international law “touch and concern the territory of the United States…with sufficient force to displace the presumption against extraterritorial application.” In other words, if, as in the Kiobel case, all or most of the relevant misconduct occurred outside the United States, the statute cannot be invoked. In so holding, the Court again reiterated that the purpose of the presumption against extraterritoriality was “to protect against unintended clashes between our laws and those of other nations which could result in international discord.”

Justice Breyer, in a concurring opinion joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, expressly disagreed with this reasoning. Although the legislative history of the Alien Tort Statute was murky, prior Supreme Court decisions had affirmed that it was intended to apply, among other things, to instances of piracy occurring on the high seas against ships bearing foreign flags. Therefore, since Court had already determined that Congress intended the statute to apply to activity outside the US, the presumption against extraterritoriality was inapplicable.

As for the potential for clashes with the laws of other nations, Justice Breyer stated his belief that this potential had been largely eliminated by prior decisions of the Court restricting the definition of torts committed in violation of international law to atrocities that all civilized nations recognized as beyond the pale. The perpetrator of such outrages was “an enemy of all mankind,” and the statute should not be interpreted to provide him refuge from civil liability to his victims. In the Kiobel case, however, the oil companies involved had only a tangential connection to the alleged misconduct, and so Justice Breyer and the other concurring justices who joined his opinion still agreed with the majority’s conclusion to dismiss the suit.

The majority decision in Kiobel was promptly denounced by The New York Times as a “giant setback for human rights,” and various human rights organizations issued similar statements. But in the abstract, there is something to be said for both sides of the debate.

For example, in the September 2015 issue of Foreign Affairs, US Circuit Judge José A. Cabranes, who wrote the initial appellate decision dismissing the Kiobel case (though on other grounds than those used by the Supreme Court), argues that the extension of US law to suits by non-US citizens for torts, however outrageous, that were committed entirely abroad has already fostered resentment on the part of many foreign governments that we respect. He quotes Thabo Mbeki, the post-apartheid president of South Africa, denouncing as “judicial imperialism” a US appellate court’s approval of a 2007 lawsuit brought under the Alien Tort Statute by South African citizens resident in New York who alleged that apartheid-era torts had been perpetrated against them. President Mbeki’s point was that, in the difficult world of post-apartheid South Africa, it should be left to the South African courts and government to determine how apartheid-era violations are dealt with.

Judge Cabranes also fears that such “judicial imperialism” will invite retaliation. He suggests that, applying the same general reasoning,

a Chinese court could allow a lawsuit against a US company for transactions conducted in the US that were perfectly legal under US law. A European court might permit a lawsuit against a former US President for ordering a drone strike on a target abroad, or a lawsuit against a secretary of defense or a law professor who advised that president to use the drone.²

Although Justice Breyer’s book was written before Judge Cabranes’s article appeared, the book responds to similar arguments by noting that the dangers they suggest are very unlikely to be realized in cases where the alleged violations are those that virtually everyone recognizes as outrageous. Justice Breyer observes that the Supreme Court had already held, in the 2004 case of Sosa v. Alvarez-Machain, that courts applying the Alien Tort Statute “should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world.” The same case also required that such torts be defined with specificity, so as to preclude vague claims of generalized misconduct.

I could suggest another perspective on the extension of the presumption against extraterritoriality to both the securities fraud statute and the Alien Tort Statute. In applying the presumption against extraterritoriality to the securities fraud statute in the Morrison case, the conservative majority of the Supreme Court suggested that many of the federal securities fraud cases involving foreign misconduct that only tangentially involved the United States were the product of the unique advantages that US law accords to securities lawyers bringing class action suits against corporations on a contingent-fee basis.³

Breyer refers to this obliquely when, in his description of the Morrison case, he quotes the statement in the majority opinion that “some fear that [the United States] has become the Shangri-La of class-action litigation for lawyers representing those allegedly cheated in foreign securities markets.” Without overtly drawing the analogy, Justice Breyer then goes on to point out, in his discussion of cases brought under the Alien Tort Statute, that there has been a substantial increase in the number of such cases filed against corporations, with “about 150 [such] suits filed since 1993.” He adds that, more generally, those bringing such suits have begun to see suing corporations as “particularly fruitful,” since the corporations “have deep pockets, they or their representatives can be found in the United States, and they might well settle a suit….”

To this writer, it seems more than likely that a desire to curb suits brought by contingent-fee lawyers against corporations was a motivating factor behind the extension of the presumption against extraterritoriality to the Alien Tort Statute in Kiobel. But, as noted earlier, the fact that a decision is motivated by an economic or political agenda does not of itself invalidate the reasons advanced in support of the decision. Within broad limits, such reasoning must stand or fall on its own terms. And the real battle, as the debate between Justice Breyer and Justice Scalia illustrates, is between those who would narrow the role of US courts in both considering and implementing foreign and international law and those who would expand it.

I am not as certain as Justice Breyer that the increase in international interdependence makes more judicial involvement with international law inevitable. As the enlarged application of the presumption against extraterritoriality illustrates, there is still room to retreat into judicial isolationism. But I do agree with Justice Breyer that this would be a tragic mistake. In this interconnected world, to forgo the opportunity to help guide the development of interactive law among nations, and to be guided by it, would be to miss a valuable opportunity to advance the rule of law.