A Bullet Dodged

While most of the attention of the press is focused on the Guantanamo case, the most important words to come out of the Supreme Court of the United States in the flurry of opinions it issued at the close of the current term may be these:

Although the ICJ's interpretation deserves "respectful consideration," Breard, "it does not compel the Court to reconsider Breard's understanding of the Convention. "The judicial Power of the United States" is "vested in one supreme Court . . . and . . . inferior courts." U. S. Const., Art. III, §1. That "power . . . extend[s] to . . . treaties," Art. III, §2, and includes the duty "to say what the law is," Marbury v. Madison, 1 Cranch 137, 177. If treaties are to be given effect as federal law, determining their meaning as a matter of federal law "is emphatically the province and duty of the judicial department," headed by the "one supreme Court." Ibid. Nothing in the ICJ's structure or purpose suggests that its interpretations were intended to be binding on U. S. courts.

The words are from the five-vote opinion of Justice Roberts, Sanchez-Llamas V. Oregon. They involve a Mexican national who was not informed during police interrogation of his right under the Vienna Convention on Consular Relations, to which the government of the U.S. is a signatory, to have his country’s diplomatic officials in the U.S. notified of his detention, whereupon they might choose to assist him in navigating the U.S. judicial system. The proximate question was whether his confession during that interrogation should be thrown out. If a U.S. law-enforcement officer had violated his constitutional rights during interrogation, then under the American legal doctrine known as the exclusionary rule the evidence would be inadmissible. The more profound question arises because the International Court of Justice (aka the "World Court"), to which the U.S. government is also a signatory, issued an opinion indicating that despite the fact that a foreign defendant had not raised the issue at the stage at which, under American law, he should have, the failure to notify deprived him of his right and thus his confession should be excluded. Critically, under U.S. law defendants must raise such claims at trial, but the ICJ indicated that this aspect of American law was unacceptable because it violated a state-to-state treaty. And so the defendant should get rights he did not have under any interpretation of U.S. law by a U.S. court.

In his opinion at one point Justice Roberts notes that none of the other parties to the Vienna Convention even have an exclusionary rule. And the ultimate point of his opinion was the long-established U.S. legal procedures were to trump international law in the sense that no ICJ interpretation of U.S. treaty obligations was binding on the U.S. Supreme Court.

Justice Breyer has been the biggest enthusiast of using foreign cases as a valid source for U.S. Supreme Court jurisprudence, once citing in an opinion a case from Zimbabwe, a country driven to ruin by a single man (Robert Mugabe) and where the rule of law is a fantasy. In Roper v. Simmons, Justice Kennedy's opinion, which Justices Stevens, Souter, Ginsburg, and Breyer joined, the majority invoked the revulsion the rest of the world has for capital punishment imposed on a minor (who was 17 at the time he committed murder), even while disingenuously noting (at 25) that "[t]his reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility."

A few years back Mark Steyn noted that Americans are peculiar in that they like to lease government up ever more reluctantly from the local to the national:

In America, power is vested in 'We, the People' and leased upwards, through town, county, state and federal government, in ever more limited doses. By the time you get to the organs of embryo world government like the International Criminal Court, Americans are inclined to feel that's leasing it a little too far. A couple of miles from me, a farmer has spray-painted across his barn in giant letters a motto that speaks for many of his neighbours: 'US out of UN now'. America is the only Western power in which a significant proportion of voters disdain the UN and all its works, and where for many years Congress declined to pay the country's membership dues. Europeans assume this is some sort of primitive, redneck fear of 'multilateralism', but in fact it's an entirely reasonable wariness of diluting the sovereignty of the American people in what is, in large part, a front for anti-democratic forces.

I am not particularly skeptical of foreign cultures or people. A little national/cultural diversity in food, sports, movies and so on makes life more enjoyable. But diversity in political philosophy is taking things a little too far. The United States is unique in its devotion to the notion that individuals are presumably free, and government must have some affirmative justification for encroaching on individual sovereignty. The reliance on international jurisprudence that today serves, in the eyes of its admirers, to restrain American excesses on capital punishment will soon be used to impose U.S. Justices’ preferences on all sorts of matters alien to the broad American disposition. When they were undergoing confirmation hearings before the Senate Judiciary Committee, then-judges Roberts and Alito were both asked about the extent to which international law should be controlling on American constitutional interpretation. In an environment in which evasive answers are the norm, both gave blunt, unambiguous answers that amounted to “not at all.” Given that one of them replaced a Justice, Sandra Day O’Connor, who looked favorably on citing international precedent, it is clear that we are in a dangerous moment in our constitutional history. That Justice Roberts was skillful enough to pry Justice Kennedy, author of Roper, away from the dark side to confirm that American law is to be interpreted by Americans is testimony to his skills. Consider Sanchez-Llamas a bullet dodged.