What a more interconnected world means for the Supreme Court

The Supreme Court is often the final say on major domestic conflicts of our time. But what about when foreign law crosses paths with our legal system? Supreme Court Justice Stephen Breyer joins Judy Woodruff to discuss his new book, "The Court and the World: American Law and the New Global Realities."

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    The Supreme Court of the United States is often the final say on the major domestic conflicts of the day, from voting rights to gay marriage and health care.

    But when foreign law crosses paths with our legal system, how should the Supreme Court proceed?

    Justice Stephen Breyer, who has served on the court for over two decades, examines this in his new book, "The Court and the World: American Law and the New Global Realities."

    And Justice Breyer joins me now.

    Welcome to the NewsHour.

  • STEPHEN BREYER, Associate Justice, U.S. Supreme Court:

    Thank you very much.


    It's great to have you with us.

    So, with so many complicated issues before this Supreme Court, why did you take the time to focus on how it's affected by what's going on in other countries?


    Well, I have noticed that, over the course of the last 20 years, we have more and more cases, maybe now 15 or 20 percent, where what goes on beyond our shores is directly relevant to our making a sound decision on the American legal question before us.

    They range from security problems, Guantanamo, to human rights problems, victims of tortures, to commercial problems, copyright, antitrust, securities law, domestic relations, marriages that are governed by treaty. They're all over the place.

    And I wanted to show people, concretely, in the case of our institution, what that general word, interdependence, means.


    Well, just to bore down on this a little bit, you start out looking at some cases involving national security and, in some regards, striking a balance between national security, civil liberties.

    Why should the U.S. be concerned with what foreign countries are doing when deciding important questions like that?


    We didn't have to be, our court, for a long time. We didn't have to be in that area, because for dozens and dozens and dozens of years, the court simply stayed out of the effort to balance security interests, which was the president's job, against human rights or limitations on civil rights.

    That led to a case in World War II where 70,000 Americans of Japanese origin were put into camps in the center of the country, prison camps, for no reason, no good reason, and the court upheld it.

    Since that time, most people who study these matters think that was a terrible decision, and, therefore, the court gets involved. So, in Guantanamo case, in those four cases, we held in favor of the prisoner prisoners in Guantanamo. And Sandra O'Connor wrote these words: "The Constitution doesn't write a blank check to the president to run over civil rights, even when national security is at issue."

    Once you hear those words, blank check, you have to ask, how do we fill the check in? And to know the answer to that today involves knowing something about security problems. It involves knowing about something involving terrorism, which takes place abroad. It involves knowing how other countries deal with those problems.


    You also bring up the death penalty, and this arose in a case the court dealt with this year.

    You wrote in your — and you included in the dissenting opinion in that case — you cited the fact that most countries on Earth don't have the death penalty anymore, either by law or by practice. Again, why is that relevant here?


    Well, it — there's a debate on how relevant it is.

    The relevant constitutional provision forbids punishments that are cruel and unusual. The founders didn't say whether that meant unusual in the United States or unusual in the world. So, some people think that's quite relevant. Other people think it isn't so relevant.

    I put that in, in the opinion to show that we are virtually alone, but some other countries have it. Nonetheless, that wasn't my main basis for the conclusion. The conclusion was, we should hear the question of whether the death penalty is unconstitutional. And there were other reasons. Arbitrariness, wrong person, long delays, the diminished number of cases in the United States, just a handful, where death is actually carried out, those were the basic reasons I thought we should reconsider the question.


    A number of your — well, four of your more conservative colleagues on the court have made it very clear they're troubled by the idea of being influenced by foreign law.

    In a number of cases over the years, this has come up. It's come up in Congress when members of — nominees to the Supreme Court have been seeking confirmation. Do you think that kind of implacable opposition to paying attention to foreign law is softening among some of your colleagues?


    Yes, for this reason, in this respect, and that's one reason I wrote this book.

    If you look at the cases actually before us, they're much different and often far more mundane, but perhaps very important, than death penalty cases. They involve, for example, treaties, which deal with what? Which deal with marriages that failed and abduction of children across boundaries.

    Why do we have those treaties? Because, today, marriage is more and more international. And who interprets treaties? We do. The federal courts do. And when we interpret them, do we pay attention to what other countries have said is the right meaning of the treaty? Absolutely.

    And you can find in all of — I think that's a unanimous view. So, there are many issues where of course you have to take into account foreign matters. And that's what I want to show has become more and more of our business.


    And you're saying — and one of the reasons you wrote the book was to influence your fellow justices.


    No, I'm just saying I want the ordinary — the ordinary reader — and I prefer, you know, people read this — contrary to popular belief, of our 315 million citizens, 314 million are not lawyers.



    And I would like them to have a chance, too, to know what goes on in the court.


    A broader question about the court, Justice Breyer.

    Critics on the right, some of them are now saying this court has become too activist. Among other things, they're pointing to the ruling in support of same-sex marriage. They're saying, why should the Supreme Court be intervening itself in an area where the public is still sorting itself out?

    How do you answer that? Is the court…


    Everyone — and everyone has a right to criticize the court. And, oddly enough, what we do, the nine members, rarely try to respond to the criticism.

    Why? Because our job, our job, which we take very, very seriously, our job is to look at the individual case in front of us, to read perhaps a dozen, perhaps 100 briefs that have been filed on the two sides, to try to understand, through the argument, written and oral, and discussion in the court, where the right answer lies and try to write as best we can our real reasons for reaching the conclusions that we reached.

    Now, we take that job seriously. David Souter said, we are never off-duty. And we're not. And that is what we must continue to do. And, ultimately, I believe — and others — Justice Brandeis believed this — that the best hope for maintaining the respect for the court that is necessary for our Constitution to work is just do your job.


    Justice Stephen Breyer, the book is "The Court and the World: American Law and the New Global Realities."

    We thank you very much for coming to sit down and talk to us. Thank you.


    Thank you.

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