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Human Rights Law at the US Supreme Court: Two New Resources

By mdavis

With the start of the Supreme Court term now on the horizon, and the prospect of at least one new Justice very soon, it’s a good time to highlight two new resources on the Supreme Court’s approach to human rights and international law.  One, a new book, highlights the divide on the Court in approaching human rights law.  The second, an analysis of the Obergefell case, suggests that the divide is not as dramatic as the justices’ rhetoric might imply. 

The new book is by Stephen Simon, published this past summer, and titled The U.S. Supreme Court and the Domestic Force of International Human Rights Law.  Here is the publisher’s blurb:

The U.S. Supreme Court and the Domestic Force of International Human Rights Law, By Stephen A. Simon, 9781498534703 | Rowman & Littlefield

“The core idea underlying human rights is that everyone is inherently and equally worthy of respect as a person. The emergence of that idea has been one of the most significant international developments since the Second World War. But it is one thing to embrace something as an aspirational ideal and quite another to recognize it as enforceable law. The continued development of the international human rights regime brings a pressing question to the fore: What role should international human rights have as law within the American legal system?

The U.S. Supreme Court and the Domestic Force of International Human Rights Law examines this question through the prism of the U.S. Supreme Court’s handling of controversies bearing most closely on it. It shows that the specific disputes the Court has addressed can be best understood by recognizing how each interconnects with an overarching debate over the proper role to be accorded international human rights law within American institutions. By approaching the subject from the justices’ standpoint, this book reveals a divide in the Court between two fundamentally different orientations toward the domestic impact of the international human rights regime.”

 
The addition of a new Justice will likely affect the divide that Simon identifies, since Justice Scalia was a particularly outspoken opponent of foreign law citations.  But an essay by Zachary Kaufman in the Yale Journal of International Law Online, observes that the divide may have already been closing in 2015.  Kaufman’s essay, “From the Aztecs to the Kalahari Bushmen: Conservative Justices’ Citation of Foreign Sources: Consistency, Inconsistency, or Evolution?,” reviews the dissenting opinions in Obergefell v, Hodges and notes that every one of them, including Justice Scalia’s, incorporates an appeal to foreign law of some stripe.
 
Kaufman recognizes that this may not reflect a complete change of heart by the Justices who previously rejected the relevance of foreign law (and with it, human rights law).   Perhaps it should be chalked up to inconsistency.  Still, the willingness of every Justice to reach out to foreign law and practice that supports their position does suggest a mellowing of the debate, and that we will not likely see more Scalia-style foreign and international law “take-downs” in the coming terms.