Breyer bound by court opinions

Justice Stephen Breyer's new book, "The Court and the World" (Knopf 2015), is simultaneously enlightening and frustrating. The book is insightful in reviewing the many ways in which foreign law arises in the cases on the Supreme Court's docket. But the book is limited in that Breyer is careful to restrict himself to describing what is found in the court's published opinions. In fact, in the introduction he says that in discussing Supreme Court decisions, which are the focus of the book, he "rel[ies] entirely upon publicly available materials, normally the judicial opinions in the case itself." This means the book often does little more than summarize the decisions.

Breyer's thesis is that foreign law and international issues increasingly will affect American law and the cases that the Supreme Court has to decide. The strength of the book is in his pulling together the many different areas of law and cases on the Supreme Court's docket where this has arisen. He persuasively argues that American lawyers and judges need to better understand foreign law and better deal with international issues in what he refers to as an increasingly "interdependent" world. He constantly reminds the reader that there is no Supreme Court for the world and American courts will not be able to avoid these questions.

This conclusion is neither original nor profound, but Breyer develops it well. The first part of the book describes how the Supreme Court has dealt with issues concerning national security and civil liberties. He traces this issue from Cicero and Roman law through the court's decisions concerning access to the courts by the Guantanamo detainees. He describes how for a long time the Supreme Court was very deferential to the government and especially the president, such in permitting President Lincoln's suspension of the writ of habeas corpus, allowing convictions of those who criticized the draft during World War I, and upholding the evacuation of Japanese Americans during World War II. Breyer says that he would have joined the dissent in that case.

Breyer then describes how the court subsequently has taken a less deferential approach. He provides a detailed description of the background of the "steel seizure" case, Youngstown Sheet & Tube v. Sawyer. The final chapter in this part of the book describes the court's more recent decisions in Hamdi v. Rumsfeld, which held that American citizens can be detained as enemy combatants but must be given due process, and Rasul v. Bush and Boumediene v. Bush, which concluded that Guantanamo detainees must have access to federal courts via a writ of habeas corpus.

It is the discussion of the recent cases that is especially frustrating for the reader. There is nothing in the description that is not found in the opinions. In Hamdi, Breyer provided the fifth vote for Justice Sandra Day O'Connor's conclusion that the Authorization for the Use of Military Force allows the detention of American citizens as enemy combatants. I always have wondered why he did not join with Justices David Souter and Ruth Bader Ginsburg, who said that there was inadequate statutory authority for such detentions, or Justices John Paul Stevens and Antonin Scalia, who said that the government never can detain individuals unless Congress suspends the writ of habeas corpus. But Breyer offers no clue as to his choice and his reasoning.

There is also almost a self-congratulatory tone to the discussion of how the court protected the writ of habeas corpus for Guantanamo detainees. But not one detainee has been granted habeas corpus yet. Every time the district court has done so, a conservative panel of the U.S. Court of Appeals for the D.C. Circuit has reversed. The Supreme Court has denied certiorari in every one of these cases. Boumediene was decided on June 12, 2008, and the court has not taken a single case concerning Guantanamo in the over seven years since then.

The second part of the book looks at the foreign reach of American statutory law. One chapter focuses on how foreign law issues affect the application of American statutes concerning antitrust, discovery, securities and copyright. These are areas of law less familiar to me and I learned much from Breyer's clear summary of the cases.

The other chapter involves the use of American statutes, especially the Alien Tort Statute, to protect human rights. Breyer especially focuses on two Supreme Court decisions that restricted the availability of the statute: Sosa v. Alvarez-Machain and Royal Dutch Petroleum v. Kiobel. I was co-counsel in both of these cases to Paul Hoffman, who was lead attorney and argued them. Here, too, I found Breyer's discussion frustrating. For example, in describing the former case, he says that "Alvarez-Machain was a doctor who helped the torturers by keeping the victim alive." But the federal district subsequently concluded that there was no evidence whatsoever that Alvarez-Machain had done this and dismissed all of the charges against him. More generally, Breyer offers no explanation beyond the Supreme Court's opinions for why it adopted such a restrictive approach to this law, especially when it does not follow the statutory language and leaves victims of human rights violations often with no other recourse.

The third part of the book looks at international agreements and especially the court's treatment of treaties. The final chapter in this part of the book, Chapter 10 overall, looks at the controversy over American courts looking to international law in deciding constitutional cases. Breyer shows that this is much ado about nothing; no Supreme Court decisions interpreting the Constitution have been based on foreign law. Moreover, he is very persuasive in explaining how American judges can learn from how judges in other countries deal with similar issues. I found particularly enlightening his discussion of how other nations deal with detentions of those suspected of aiding terrorist activity and how similar the issue is across the world.

The final part of the book is titled the "Judge as Diplomat." Here, Breyer describes some of his own experiences, such as in traveling to India to discuss alternative dispute resolution with judges there, in going to China to discuss the rule of law, and in talking with students in Tunis. I especially enjoyed this part of the book because it contains new information that cannot be found in the court's published opinions.

Ultimately, the book should be praised for thoroughly demonstrating how much foreign law affects American law as shown by the Supreme Court's docket. The book is clearly written and should be accessible to a wide audience. Yet, the book also left me unsatisfied in that was about Supreme Court decisions but did not go beyond the published opinions. It left me to wonder about sitting Supreme Court justices writing books about their own cases.