Supreme Court Justice Antonin Scalia

The controversy over the influence of international law in U.S. judicial decision-making has intensified in recent years, particularly with new legal questions surrounding the war on terrorism. On February 21, AEI hosted a conference to examine how U.S. legal norms are being influenced by entities outside of the United States.

Although Supreme Court Justice Antonin Scalia expressed a largely unfavorable opinion about the influence of international law on the American judiciary, he did point to several key areas in which he deemed consideration of it to be appropriate: informing decisions involving domestic legislation based on U.S. treaty obligations, comparing possible outcomes of U.S. decisions with similar cases already decided elsewhere, and assisting in cases that involve an alleged violation of international law occurring in another country, such as recent litigation over the seizure of artworks by the Nazis during World War II.

Justice Scalia argued that international law should not influence the interpretation of the U.S. Constitution, however. He charged “living constitutionalists” with expecting that the Constitution should evolve as society evolves, adding that “as you are engaged in writing your Constitution, there is no reason whatever not to consult foreign materials in doing it.” He charged that some justices use foreign law to give themselves more leeway in forming decisions in order to suit their philosophy or moral sentiment. Justice Scalia asked, “What reasons are there to believe that other dispositions of a foreign country are so obviously suitable to the morals and manners of our people that they can be judicially imposed through constitutional adjudication?”

Thomas Goldstein of Goldstein and Howe LLP argued that the debate over using foreign law to interpret the Constitution is really a proxy for the debate over originalism. Goldstein held that the courts can legitimately use foreign law in the same manner in which they use academic publications to form and support their decisions. National Journal’s Stuart Taylor found that using foreign law in cases in which there is no public consensus on a certain issue to be legitimate.

William Dodge, Hastings College of Law, considered the evolving use of the Alien Tort Statute. Cases in the 1980s generally involved aliens suing other aliens for human rights abuses committed abroad, and in the 1990s, individuals sought compensation from corporations directly or indirectly involved in human rights abuses. Similar cases now involve claims against the U.S. government.

David Moore, University of Kentucky College of Law, read the decision in Sosa vs. Alvarez-Machain as imposing limits on the federal judiciary’s use of international law in decision-making and cautioned courts to follow the lead of Congress in such interpretations. Beth Stephens, Rutgers School of Law, added that the Supreme Court decided that courts only have the power to apply customary international law if Congress allows them to do so. Julian Ku, Hofstra University School of Law, contended that the president has the constitutional power to issue interpretations of customary international law that are binding on the federal courts.
 
Kenneth Anderson, Washington College of Law, urged Congress to institutionalize some of the practices in the war on terrorism to develop better legal standards for issues like the use of force, surveillance, and interrogation tactics. Morton Halperin of the Open Society Institute agreed that the long struggle of the war on terrorism requires the cooperation of Congress, the courts, and other countries. He contended that we should obey international law “as it is, not as others define it,” and that the United States should pay more careful attention to ensuring that foreign governments view this war as a lawful struggle and one that deserves their support.

AEI’s John Yoo characterized the use of foreign law in judicial interpretation as an international relations issue. Europe, he argued, “desires greater application of international law in order to constrain U.S. power,” while the United States opposes such constraints. He recommended that “perhaps it is better to let Congress or the president decide the foreign policy implications of following international norms to a greater or lesser extent.”