Most of Justice Breyer’s newly released book, The Court and the World, deals with cases in which the Court is required to engage with foreign nations and foreign law.  These cases, Breyer writes, “show how routinely American interests extend beyond the water’s edge, obliging the Court, in turn, to extend its range of legal and practical reference beyond what has been its custom, in order to arrive at sound judgments.”  Only after a couple hundred pages on this issue, and then only in a brief chapter he labels a “Postscript,” does Breyer turn to the controversy over considering foreign law as aid in interpreting domestic law, particularly the Constitution.  Breyer seeks to distinguish this controversial issue from a discussion of the inevitable engagement of the Supreme Court with foreign law and practices.  “Although this argument has seemed to occupy the foreground in political discussions about the role of foreign law,” Breyer writes, “it turns out to prove relevant to only a small part of that role.”

So it is only with apparent reluctance that Breyer shifts his focus from those cases in which engagement with foreign law is unavoidable to those cases in which engagement is the product of a choice on the part of a justice.  He mentions Justice Kennedy’s reference to the U.S. “stand[ing] alone” in the world in its use of the death penalty against minors—a practice that the Court struck down in 2005 as a violation of the Eighth Amendment.   He also mentions Justice Kennedy’s references to foreign nations’ rejection of punishment for same-sex sodomy in Lawrence v. Texas.  These references to foreign law as a tool for interpreting the Constitution drew the criticism not only of the dissenters in these cases, but also of members of Congress, where there were efforts to pass legislation prohibiting this kind of use of foreign law.

Breyer offers a gentle rebuttal to these critics.  Referencing foreign law can serve as a tool that “can help judges produce better decisions without constraining their decisional autonomy,” he explains.  “Judicial decision making, particularly in the Supreme Court, is not a mechanical effort at applying clear legal rules to new factual situations.  The task is more appropriately seen as a kind of problem solving.” The experience and thoughts of others, including judges in foreign lands, may prove informative in that problem-solving task.  Furthermore, turning to foreign law as an aid in interpreting domestic law is nothing new in the American judiciary, a point Breyer supports by citing examples from throughout the twentieth century.

Breyer argues that when these controversial but relatively rare instances when the Court cites foreign law to support an interpretation of the Constitution are placed in the context of the real subject of Breyer’s book—cases involving treaties, the foreign reach of U.S. law, or questions of U.S. jurisdiction over foreign activity in which engagement with is unavoidable—they appear more routine.  The Court must regularly, by necessity, deal with foreign law.  It never has been and never can be a “hermetically sealed legal system.”  The heat of the debate over referencing foreign law dissipates once this fact is fully appreciated, Breyer contends.  

In concluding his “Postcript” on foreign citations, Breyer attempts to turn the tables on his critics.  Rather than worrying about protecting the sovereignty of the U.S. legal system from foreign influence, American jurists should be thinking about ways to spread the influence of American law to foreign legal systems.  Judges who acknowledge the work of foreign courts will be serving this cause.  Breyer thus frames his call for greater attention to foreign law on not only a cosmopolitan sensibility or intellectual generosity—values that are unlikely to move his critics—but also on national self interest.  The Court and the World offers a persuasive argument that, in an increasingly interdependent world American self interest, is served by a greater judicial understanding of foreign law.  Whether this same argument will persuade critics of references to foreign law in decisions involving the interpretation of the U.S. Constitution is another story, however.