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For the last few years, a complex debate over the role of international law in deciding U.S. controversies has roiled legal waters. For those who follow the issue, the most recent Supreme Court term had all the makings of a blockbuster. A number of key cases, involving global commerce, national security, and the war on terrorism, all pushed the justices to consider the views of those outside the United States. In Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla, the Court was tasked to consider issues of executive power, civil liberties, and — potentially — treaty obligations in the war on terrorism. Other, seemingly unrelated cases — involving issues as diverse as human rights ( Sosa v. Alvarez-Machain), antitrust law ( F. Hoffmann-LaRoche v. Empagran), the immunity of foreign countries ( Republic of Austria v. Altmann), and the availability of discovery for foreign litigants ( Intel Corp. v. Advanced Micro Devices Inc.) — offered the tantalizing prospect that the Court would make a broad and coherent statement about the role of U.S. courts in an increasingly globalized legal system. To a point, the term lived up to expectations. The rulings in Rasul that U.S. courts have jurisdiction to hear suits brought by foreign prisoners detained at Guantanamo Bay and in Hamdi that a U.S.-born “enemy combatant” seized in Afghanistan must be provided with fundamental due process are historic. The justices also held the doors of U.S. courthouses open — at least to a certain extent — to foreign victims of human rights abuses ( Sosa) and global price-fixing cartels ( Empagran), to plaintiffs seeking relief from foreign countries for conduct during World War II ( Altmann), and even to plaintiffs seeking discovery for use in foreign legal proceedings where similar discovery might not be available overseas ( Intel). All these decisions reflect at least some acknowledgement on the part of the Supreme Court that the responsibilities of the U.S. legal system do not necessarily end at the nation’s borders. What they do not do is provide a broader vision of the role of U.S. courts in an increasingly globalized legal system, nor do they reach a consensus on the role of international law in U.S. decision making. What the Court chiefly did in cases with international implications this term was to resoundingly re-affirm the principle first articulated by Chief Justice John Marshall in Marbury v. Madison: that “it is emphatically the province and the duty of the judicial department to say what the law is.” WITH DUE CONSIDERATION Not everybody wanted to hear that. Litigants and amici ranging from the U.S. government to the business community and the European Commission had urged the Court either to decline to reach the merits or to construe the relevant statutes to forbid relief to avoid interference with concerns as vital as national security, comity, and the conduct of foreign relations. But the justices rejected that absolutist view. They concluded instead that while those considerations were certainly valid, they were not necessarily always dispositive. Instead, they should properly inform the decisions of individual district courts whether to allow particular cases to go forward. For example, the Court in Altmann paid little heed to the U.S. government’s view that the Foreign Sovereign Immunities Act should not be construed to apply to conduct that occurred prior to 1952. But the same opinion strongly hinted that the government’s views regarding a case’s potential effect on foreign relations “might well be entitled to deference.” Similarly, in Sosa, the Court held that the Alien Tort Statute allows U.S. courts to hear claims by foreign plaintiffs seeking redress for violations of universally recognized norms of international law. But it also took judicial notice of the “strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.” The Court’s ruling in Sosa appears, more than anything else, to embrace prior practice. In several recent cases, the U.S. government has filed “statements of interest” urging the lower courts to decline to exercise jurisdiction because the relief sought would, for example, interfere with international treaty obligations. And the courts have sometimes obliged. In any event, the majorities’ views in Altmann and Sosa make intuitive sense. They allow the lower courts to consider the unique facts and issues involved in individual cases and, if necessary, to weigh competing concerns such as comity, national security, and foreign relations. But they preserve the option of a federal forum when the lower courts find that such issues either are not implicated in particular cases or are outweighed by the interest in providing relief. Whether the Altmann dissenters are right to castigate the Court for creating its own separation-of-powers problems by “inviting foreign nations to pressure the Executive” to support the dismissal of particular cases remains to be seen. SMALL STEPS ONLY While the Supreme Court properly seized the chance to re-affirm the role of U.S. courts as the law’s arbiter within our tripartite system of government, the justices can fairly be criticized for having missed an opportunity to articulate a broader vision of the role of U.S. courts in the global legal system. While the prospect of a single guiding principle may have been wishful thinking, the bottom line is that the decisions produced only narrow holdings that lack any serious cumulative significance. We’ll never know precisely why the Court missed this opportunity, but one possibility seems likely: The justices were simply unable to reach a consensus. Take the Sosa case, in which the justices agreed that the individual plaintiff was not entitled to relief, but sharply disagreed on the rationale for their holding. The majority concluded that the claim in that particular case did not implicate the kind of specific and universally recognized international law norm for which the Alien Tort Statute provides relief. However, the concurring opinion of Justice Antonin Scalia, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, reflects their view of the courts as having a much more limited role in the international legal system. Characterizing the majority as “incapable of admitting that some matters — any matters — are none of its business,” Justice Scalia’s concurring opinion criticizes the majority opinion as authorizing “unelected federal judges” to determine what international law norms fall within the Alien Tort Statute’s ambit. Justice Stephen Breyer’s opinions this term indicate that he too favors limiting the role of U.S. courts. But he would do so out of respect for comity and foreign courts rather than based on separation-of-powers concerns. Even if this term can be most favorably characterized as taking only small steps toward a broader vision of the role of U.S. courts, any progress is welcome and, at bottom, inevitable. As the international legal system continues to mature, U.S. courts cannot shy away from their basic duty of stating what the law is, not only with regard to the other branches of government but also in the international system. There is a growing recognition that some international law norms are so important that U.S. courts must provide a forum for claims alleging violations of those norms. And, contrary to dire predictions, suits by foreign plaintiffs seeking relief under U.S. laws have been relatively few and, in any event, are kept in check by other legal rules, such as principles of comity and forum non conveniens, statutes of limitations, and personal jurisdiction requirements. CONSTITUTIONALLY WARY Another missed opportunity was the Court’s failure to reach any consensus regarding the role that foreign legal materials and international law should play as precedents for their decisions. This issue has received considerable attention as the result of citations to foreign legal materials in recent decisions such as Atkins v. Virginia (capital punishment for the mentally retarded), Lawrence v. Texas (gay rights), and Grutter v. Bollinger (affirmative action). But this term, the issue of non-American legal reasoning as precedent largely flew below the radar screen. The relative lack of more recent controversy probably stems from the fact that this term’s opinions used foreign legal materials primarily to support constructions of statutes or international conventions, a use that is relatively uncontroversial. Indeed, even Justice Scalia, who has staunchly opposed the use of foreign legal materials in cases calling for constitutional interpretation, cited the practices of other countries this year. As Sosa made clear, however, the role of international law norms in U.S. courts remains more controversial, including among the justices themselves. Yet criticisms of the Court’s reliance on international law are mostly unfounded: As the Court held over a century ago in the 1903 Paquete Habana case, international law is a part of U.S. law, and it has been routinely construed and applied by U.S. courts. Moreover, as both the majority and Justice Breyer’s concurring opinion in Sosa point out, if Congress disagrees with the justices’ interpretation of international law, it can easily fix the problem itself by “mak[ing] clear that courts should not recognize any such norm.” The role of both foreign legal materials and international law in cases turning on interpretations of the U.S. Constitution remains the most contentious — even if the hullabaloo so far has proved to be much ado about nothing. Although the issue simply did not come to the fore this term, both sides of the debate expect it to return to center stage in the next term when the Court considers the constitutionality of juvenile executions in Roper v. Simmons. Following the Court’s opinion in Atkins, in which the majority noted that the “world community” overwhelmingly disapproved of capital punishment for mentally retarded offenders, one might have expected the issue to surface on its own in any event. Because the Missouri Supreme Court relied, at least in part, on its perception of an international consensus against juvenile executions to overturn the death sentence in Roper, the only remaining question may be how — rather than whether — the U.S. Supreme Court deals with the issue. Looking at the term as a whole, the bad news for those urging more attention to global norms is that the Court missed several opportunities to give more weight to international law. The good news is that, because the Court will inevitably confront issues regarding the role of U.S. courts in the global system and the role of foreign legal materials and international law in the near future, the missed opportunities will likely prove regrettable but not tragic. Indeed, while the Supreme Court may have failed to articulate a broader vision, even its narrow holdings this term may have taken U.S. courts beyond the point of no return on the path to a broader role in the increasingly interdependent international legal system. Amy Howe is a partner in D.C.’s Goldstein & Howe, which focuses on Supreme Court litigation. The firm served as counsel to the respondents in F. Hoffmann-LaRoche v. Empagran . Howe can be reached at [email protected].

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