court_front_med.jpgWhile everyone spent the weekend talking about who bested whom in the McCain-Obama match-up, the New York Times magazine turned away from all that to focus on the really important policy makers in Washington: the Supreme Court. SCOTUS played cover model for Sunday’s NYT magazine, with HLS prof Noah Feldman’s lengthy piece, When Judges Make Foreign Policy.

We love the Star Wars-esque article preview: “When the next justice is appointed, our place in the world may well hang in the balance.” In case you didn’t get the magazine this weekend, and don’t feel like clicking through ten pages online to read it, we’ve got a rundown for you.

Feldman writes that the justices have become “the oracles of our national identity.” We like this analogy. The Greek oracles wore white. The Justices wear black. Advice seekers went to temples to consult Greek oracles. People go to the white gleaming temple at One First Street to address the Justices. The Greeks had hallucinogenic fumes rising from the earth, enhancing their prophetic powers. The Justices have caffeine and the sweet, sweet smell of the pages of the Constitution. But we digress.

Feldman says the defining issue of our time is globalization, and that SCOTUS wields incredible power as it establishes the place of the U.S. in the world through its rulings on international law. Listen up, law school folk, perhaps that international law class is not such a waste of time after all. Conservatives and liberals feel differently, of course, about how the Constitution applies internationally:

In recent years, two prominent schools of thought have emerged… One view, closely associated with the Bush administration, begins with the observation that law, in the age of modern liberal democracy, derives its legitimacy from being enacted by elected representatives of the people. From this standpoint, the Constitution is seen as facing inward, toward the Americans who made it, toward their rights and their security. For the most part, that is, the rights the Constitution provides are for citizens and provided only within the borders of the country…

A competing view, championed mostly by liberals, defines the rule of law differently: law is conceived not as a quintessentially national phenomenon but rather as a global ideal. The liberal position readily concedes that the Constitution specifies the law for the United States but stresses that a fuller, more complete conception of law demands that American law be pictured alongside international law and other (legitimate) national constitutions.

Feldman argues that new appointees for SCOTUS spots that are sure to open should be evaluated based on their thinking about the Court’s role in shaping American foreign policy. The SCOTUS newbies will determine whether the Constitution will be a shield, or will be a blanket shared around the global campfire while everyone sings Kumbaya.

More on this after the jump.


The article has a lengthy section on “inward”/sovereigntist and “outward”/internationalist Constitution interpreters. The inward lookers see international law as illegitimate, in part because it is not created by a democratically-elected Congress or signed by a democratically-elected president. And also in part because it ties our hands, preventing the U.S. from protecting itself and its citizens. The outward lookers still believe in sovereignty but want to ensure that legal order is the norm everywhere.

The Supreme Court, whose new term begins Oct. 6, has become a battleground for these two worldviews. In the last term, which ended in June, the justices gave expression to both visions. In two cases in particular — one high-profile, the other largely overlooked — the justices divided into roughly two blocs, representing the “inward” and “outward” looking conceptions of the Constitution, with Justice Anthony Kennedy voting with liberals in one case and conservatives in the other.

The liberal victory was Boumediene v. Bush, on the detentions of suspected terrorists at Guantánamo Bay, and the conservative victory was Medellín v. Texas, about the right of death-row inmates to call their countries’ embassies. The vote swinger was maverick Justice Kennedy:

Underscoring the tension between the two cases is the fact that nearly all the justices of the Supreme Court voted consistently across both of them. The four conservatives — Justices Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito — dissented from the extension of habeas corpus rights to Guantánamo Bay in Boumediene and joined the majority opinion in Medellín that made it harder for treaties to become law. Meanwhile the court’s liberals — Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — joined the majority in the Guantánamo case, and all but Stevens dissented in Medellín. (Though Stevens voted with the majority in that case, he did so seemingly only for tactical reasons; he wrote a separate, concurring opinion that did not embrace the logic of Roberts’s majority opinion.)

The key vote in both cases was that of Kennedy. In both cases, he acted to uphold the prerogatives of the Supreme Court — against the president and Congress in the Guantánamo case, and against the international court in the Medellín decision. And Kennedy does argue that such judicial supremacy is crucial to the rule of law. But the other justices did not see the cases in those terms. To them, the cases were not primarily about the perennial issue of the division of powers between the different branches of government. To these eight justices, the cases were about what sort of Constitution we have: either outward-facing or inward-looking.

Whether SCOTUS decides to look inward or outward may play an important part in determining U.S. foreign policy, but it’s unlikely to influence other countries’ legal thinking, according to an article earlier this month from Adam Liptak. While the U.S. decides how important international law is, international courts see the Supreme Court’s importance diminishing and are citing its rulings less often.

But don’t worry, SCOTUS. ATL will always love you.

When Judges Make Foreign Policy [New York Times]

U.S. Court Is Now Guiding Fewer Nations [New York Times]


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