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.

In SCOTUS news, this is Justice Breyer week.  Everywhere one looks, there he is—NPR, the Wall Street Journal, the New York Times, Colbert’s new late show.  The cerebral justice has a new book out, titled The Court and the World.  It is Breyer’s third book aimed at a general audience and he wants to talk about it.   Here is a brief roundup of Justice Breyer’s big week in the media.

Breyer published an op-ed in the Wall Street Journal titled “The Supreme Court in an Interdependent World,” in which he summarized the key points of his book.  Recent debates over Supreme Court citations to foreign law, he argues, is largely a distraction from the real issues involving the Court’s engagement with foreign law.  “Global interdependence increasingly is changing the work of the Supreme Court,” whether we like it or not.  Breyer concludes: “In the multipolar, mutually interdependent world, the best way to advance the values that the Founders set forth—democracy, human rights and widespread commerce—is to understand, to take account of, and sometimes to learn from, both legal and relevant nonlegal practices that take place beyond our shores.”

In the New York Times, Yale law professor John Fabian Witt wrote an appreciative review of Breyer’s “lucid” book.

Breyer contends that events in the world have effectively resolved the foreign law controversy. Playing the judge as enlightened modern technocrat, he offers a reasoned elaboration of the mounting costs that judicial isolationism would entail in our increasingly interconnected world. Globalization, he argues, has made engagement with foreign law and international affairs simply unavoidable.

“Breyer’s fiercest critics will most likely be unmollified,” Witt recognizes. “But democracy has never been a nativist straitjacket. Breyer’s book offers a powerful description of the price we would pay for allowing it to become one.”

NPR’s Nina Totenberg has an interview with Justice Breyer, which you can listen to here.  “There’s a tremendous thirst for knowledge about the court,” Breyer said in an interview with USA Today’s Richard Wolf.  His book “is not just for lawyers and judges,” Breyer explained.  “It is for people interested in how their lives are being changed by what’s happening in today’s world.”  

Tony Mauro interviewed the justice for the National Law Journal (story here; full interview here).  Breyer talked not only about his book but also about the previous term at the Court.  On his dissent in the lethal injection case, Glossip v. Gross, in which he gave a strong case for the unconstitutionality of the death penalty, Breyer explained:

I have been working on it for a while. This case was there and it seemed an appropriate place to say what I thought on the issue. I thought we should use that case, as I said in the opinion, to go into the basic problem here, which I thought was whether the death penalty itself is constitutional and I have my reasons.

In the Washington Post, Supreme Court reporter Robert Barnes interviewed Breyer.  On the controversy over looking to foreign law when interpreting the Constitution, Breyer noted the long history of U.S. judges looking abroad for guidance.  According to Breyer, the first time a citation to foreign law became a target for criticism was 1988, when Justice Scalia raised the issue in a dissent in a death penalty case.

For a profile in the New York Times, Adam Liptak interviewed Breyer in his home office in Cambridge (“cluttered and lived in, it bears signs of a restless intellect and a doting grandfather”).  “The world we’re operating in,” Breyer told Liptak, “is one in which by and large everyone believes you have to know something about what’s going on abroad.” Understanding legal practices outside the U.S., the Justice insists, “will help us think about our system.”  

And then there is the Colbert interview.  In his interview with Tony Mauro, Breyer explained his decision to go do the Colbert interview:

He has a serious news show. The publisher of this book is anxious, and I am not against, giving the book some publicity by talking seriously about it and he wants to talk about it seriously. Fine. I will do that for a couple of weeks and then I will go back to my regular job.

He is more interested in news. It is not a comedy show in particular. If he is interested in talking seriously about the book, fine. This is a serious news program actually. My publisher told me. I have not talked to him. I have just talked to the publisher, whom I trust.

If this is what Breyer expected, he was surely disappointed with his Colbert experience.

Colbert followed a very funny introduction, in which he noted that only 3% of Americans could identify Justice Breyer, with a light-hearted and not particularly substantive interview.  Colbert’s interview with “the man inside the muumuu” touched on, among other topics, cameras in the courtroom and the collegial relations among the justices.  One topic not discussed (at least not in the aired interview) was Breyer’s new book.  

In post-interview commentary, Matt Ford in the Atlantic described the interview as a “missed opportunity” for Breyer and Colbert to discuss more pressing legal issues.  In the Washington Post, Eric Wemple critiqued Breyer’s efforts to defend the Court’s refusal to allow video coverage of oral argument.

One imagines that after this week, Breyer will be happy to get back to his day job.