The Court and The World
by Jeremiah Ho
If what Justice Stephen Breyer claims is true, that “[j]udges are inevitably creatures of their times,” then the question a reader might pose while reading his latest book—The Court and the World: American Law and the New Global Realities (Alfred A. Knopf, 2015, 382 pages)—is what he thinks of the current political climate in which American law is advancing. In response, an answer he would likely offer might observe how our world and time is yielding to an interdependence between foreign actors and activities into our national life and laws, and the influence of our own domestic legal problems and solutions worldwide.
From national security issues to copyright, from the Alien Tort Statute to treaty powers, Justice Breyer reveals how the Supreme Court has adapted to such interdependence—a word that is more precise than the generic “globalization” in describing not just an awareness of international legal and political issues that come into our legal system or is affected by the rulings and legislation that our government promulgate, but also an active stance on co-existing for the sake of comity and international harmony.
This is a book about relevance more than it is about a particular methodology of interpreting the Constitution in light of interdependence. Devoid of commentary toward his originalist colleagues on the Supreme Court bench, Breyer demonstrates a philosophy of interpreting the Constitution’s meaning that takes into account how the world is changing. Erudite in fashion and yet accessible to the general public, Breyer discusses the various solutions that the American judiciary has developed to advance justice and the rule of law while understanding the American presence on the international stage in not absolute. Whether it is in the realm of human rights, securities regulation, international commerce, or something else, what Breyer ultimately indicates is that, although the Constitution is domestically supreme, there is always some give-and-take when American judges are rendering rulings that might have affect and influence elsewhere in the world. Judges must be aware of how international law works.
Whether intentional or not, the book seems to read as a graduate seminar of sorts. For instance, in the series of chapters that deal with the Court’s reaction to wartime Presidential powers upon individual rights, the reader walks with Breyer through historical case illustrations and constitutional doctrines—starting with an initial reluctance by the Court in the 18th and 19th centuries to limit the President from curtailing rights of individuals during times of threat to national security and ending with the Court’s current and still-evolving attention to balancing individual rights and the Presidential wartime powers in the face of threats to national security. Examples from the Lincoln presidency and cases such as Ex parte Milligan, Curtiss-Wright, Korematsu, and Steel Seizure all build a historical foundation for discussion of the Guantanamo cases. In a later part of the book, Breyer recounts the problem of judicial efficiency in India and discusses the ongoing exchange of ideas between American judges and their Indian counterparts in experimentations with alternative dispute resolution and other permutations in judicial procedure to alleviate the backlog of cases in India courts. The significance of this import has had both utilitarian implications for India and shed important theoretical questions about justice systems internationally.
If Breyer is right that the world is changing in a way that is increasingly interdependent, then his book, The Court and the World, offers a rich take on the complex role that the judges have in advancing the modern rule of law.