Stephen Breyer seems to me the ne plus ultra leftist progressive on the Supreme Court. I assume that’s one of the reasons why Justice Scalia relished sparring with him. No left-wing dogma is beyond Breyer and he seeks to overlay the absurd with an intellectual patina. His interest in the United States Constitution approaches nullity.
Indeed, to borrow a famous Athenian indictment, Justice Breyer seeks to introduce new gods into constitutional deliberation. In his new book — The Court and the World — he purports to justify resort to foreign law to interpret the United States Constitution.
Brian Callanan is an attorney at King & Spalding in Washington, D.C.. He previously served as general counsel to Senator Rob Portman. Callanan introduces his CRB review of Justice Breyer’s book — “Justice League International” — this way:
Writing the Court’s lone dissent in the 1999 case of Knight v. Florida, Justice Stephen Breyer relied on no less an authority than the Supreme Court of Zimbabwe to support an inmate’s claim that his long wait on death row—prolonged by his own appeals—made his punishment unconstitutional. Justice Clarence Thomas pounced: were there a shred of support for the right to a speedy execution “in our own jurisprudence,” he wrote, “it would be unnecessary” to rely on foreign sources. Breyer later confessed that invoking Zimbabwean precedent was “what one might call a tactical error.” Maybe so. But the practice caught on, and a working majority of the Court now periodically uses foreign legal sources in U.S. constitutional cases.
To his credit, Breyer is the only Justice who has seriously attempted to explain the practice. Some years ago, he joined with the late Justice Antonin Scalia to debate this and other legal flashpoints. Since judges in constitutional democracies around the world often face “problems” similar to those confronting American judges, Breyer argued, why not consider how they solved those problems? “It will not bind me,” he said, “but I may learn something.” Scalia answered that the opinions of foreign judges should be irrelevant to originalists and non-originalists alike: modern foreign sources have no bearing on the Constitution’s original meaning, and even those who wish to see the Constitution evolve through judicial decree surely want it to reflect the views of the American people. Breyer never quite mustered a clear response. Rather than advance a theory of interpretation legitimizing the use of foreign law, Breyer treats this practice, in the words of NYU School of Law’s Jeremy Waldron, as a “matter of getting a little bit of help here and a little bit of help there.”
Here we approach the heart of the matter:
Breyer suggests that the Court’s critics suffer from “some version of the psychological phenomenon of displacement,” blaming foreign law usage when their real grievance is with a case’s outcome. Projection by the author may be a more apt diagnosis. It is striking that Breyer’s use of foreign law in constitutional cases so reliably yields progressive results. In cases in which world opinion is more retrograde the international dialogue falls silent. In Obergefell v. Hodges (2015), for example, the Court recognized a constitutional right to same-sex marriage—with no mention of the European Court of Human Rights’ contrary judgment one year earlier. Indeed, foreign law does not make it into the footnotes in cases addressing issues ranging from abortion to punitive damages to criminal procedure, matters on which European sensibilities generally point to more conservative policies.
But the core objection to the Court’s innovative use of foreign law is not that it is foreign or even that it is cherry-picked. It is that foreign sources are rarely probative of the Constitution’s original meaning. As Scalia quipped: “I use foreign law more than anybody on the Court. But it’s all old English law”—that is, founding-era authorities that elucidate how those who wrote and ratified the Constitution understood its language and legal concepts. The same cannot be said about the latest ruling of the Cour de Cassation.
Breyer has more, and worse, and Callanan is a reliable guide to his deep thoughts.
Callanan’s review completes our preview of the new (Summer) issue of the Claremont Review of Books. As I have mentioned a time or two before, you can avail yourself of the most cost-effective political education in the United States with a subscription to the CRB at the heavily subsidized price of $19.95 a year. Subscribe by clicking on Subscription Services at the link and get immediate online access thrown in for free.