Stephen Breyer, Justice for the Global Age
Stephen Breyer, a progressive force on the Supreme Court for more than two decades, advocates U.S. courts taking into account foreign law. That's the stuff of a good debate, befitting a justice who got to the bench courtesy of former President Ronald Reagan and the archconservative Senator Strom Thurmond.
His ascent was mostly due to the exceptional political skill and standing of a mentor, Senator Edward M. Kennedy, who got resurgent Republicans to approve the liberal judge when they could have instead tapped one of their own for the seat.
We'll revisit that story, which is illustrative of the way Washington used to work.
In Breyer's recently published "The Court and the World," his third book since becoming a justice, he suggests the court should look abroad for guidance on some decisions because about 20 percent of cases have something to do with what happens outside the U.S. This notion is anathema to conservative members of the court, including Chief Justice John Roberts and the most forceful advocate of the right, Antonin Scalia.
Breyer says that in a globally interdependent world, the court "must increasingly consider foreign and domestic law together," noting "more harmonizing, understanding and application of American law to foreign activities is not the same as American courts deciding cases on the basis of foreign law."
This applies particularly to national security cases in the era of terrorism. From the Civil War through the internment of Japanese-Americans in World War II, the courts largely have given the president a blank check in times of war. That has changed with issues such as the detention center at Guantanamo Bay, Cuba. Breyer goes through the competing claims of security, civil liberties and foreign laws.
These complications are present in a range of other issues: securities law, copyright questions and human rights.
And the U.S. is a party to many treaties, starting with the World Trade Organization. One of the controversies involving the pending Trans-Pacific Partnership centers on resolving overlapping laws and conflicts with various parties.
"The interdependence of today's world," Breyer writes, "poses considerable challenges for our judiciary."
Breyer's appeal for more input from abroad probably flies in the face of U.S. public opinion -- which would see such cross-pollination as a violation of sovereignty -- but his more nuanced case reflects the world as it is.
This expansive perspective on the court's responsibilities is in line with his general approach as he enters a 22nd year on the bench: that the law must evolve to deal with new realities that couldn't have been foreseen by the framers of the Constitution.
One of the current court's shortcomings is the lack of a political practitioner. The nine who serve are sharp legal minds, but since Sandra Day O'Connor, a former majority leader of the Arizona State Senate who left the court in 2006, there is no one who has faced a voter and has an appreciation of real politics. This is manifest in some of the court's campaign-finance decisions, which bear little resemblance to the way the system actually works.
Breyer may come closest. He was chief counsel to the Senate Judiciary Committee and served under Kennedy, one of the great instinctive politicians of any age.
This was on display in the push to get Breyer on the bench. In 1980, Kennedy persuaded President Jimmy Carter to nominate Breyer to a seat on a Court of Appeals. (The administration had rejected the senator's first choice, the celebrated Watergate prosecutor Archibald Cox, on the grounds that he was too old.)
Nominations were on hold during the fall election season; then Reagan won the presidency and, in a shocker, the Republicans took control of the Senate for the first time in more than a quarter century.
Breyer recognized his nomination was dead and thanked his boss for his support. Not so fast, Kennedy replied. He went to Thurmond, who was about to take over as chairman of the Judiciary Committee, and said that the Breyer nomination really mattered to him. The South Carolina senator said he would go along with the nomination only if the president-elect approved. Reagan did, and Breyer passed in a lame-duck session, paving the way for his nomination to the Supreme Court 14 years later.
This reflected Kennedy's remarkable ability. But it also helped that Breyer's and Thurmond's daughters were best friends and ice-skated together.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
To contact the author of this story:
Albert R. Hunt at firstname.lastname@example.org
To contact the editor responsible for this story:
Max Berley at email@example.com