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“A Decent Respect
to the Opinions of Mankind…” Selected Speeches
by Justices of the U.S. Supreme Court on Foreign and International
Law.
Edited by Christopher J. Borgen. The American Society
of International Law. 2007
The United States Declaration of Independence recites the importance of “a decent respect to the opinions of mankind.” Throughout the history of the United States of America, concepts of foreign and international law have had a strong presence in the reasoning and decisions of the American judiciary. What has changed, however, is the American judiciary’s perception of international law, its importance, effectiveness, and relevance. For example, in 1900 the U.S. Supreme Court declared in The Paquete Habana, “[i]nternational law is part of our law, and must be ascertained and administered by the court.” However, over a century later, in March, 2008, in Medellin v. Texas, the Court determined that decisions of the International Court of Justice are not binding on U.S. courts without being adopted by a federal statute.
Professor Christopher Borgen of the St. John’s University Law School has chosen to explore the relationship between the “Nation of Laws” and the “Law of Nations” from the perspective of two Chief Justices and seven Associate Justices of the U.S. Supreme Court. In “A Decent Respect to the Opinions of Mankind…” Borgen has compiled 11 speeches given by current and former justices at the Annual Meetings of the American Society of International Law. He selected speeches from Chief Justices William Howard Taft and Charles Evans Hughes and Associate Justices Owen Roberts, Harry Blackmun, Sandra Day O’Connor, Stephen Breyer, Antonin Scalia, and Ruth Bader Ginsburg. He also included three speeches given by Associate Justice Robert Jackson.
All of the speeches were given while the individuals served on the Supreme Court. Thus each one was “a product of its times and responded primarily to the concerns of the day.” Through this collection, Borgen seeks to “sketch how America’s perception of international law has changed, ” a goal that he definitely achieves.
In a thoughtful and well-written foreword Borgen asks the reader to consider: What caused the attitudinal shift of the American judiciary from one that saw an integration of international and U.S. law to one that now sees two separate systems? He theorizes that the speeches “may have less to do with changing perceptions of law itself than with considerations of America’s place in a globalizing, interdependent, world.”
The selected speeches begin with that of Chief Justice Taft’s address in 1922 and conclude with Justice Ginsburg’s address in 2005. Borgen places the speeches into four thematic categories, ranging from the time period between first and second World Wars to the present-day. Included in the first category are those of Chief Justice Taft, Chief Justice Hughes (1931), and Justice Roberts (1943). These early speeches, according to Borger, share a common belief in the necessity of international institutions, the importance of the U.S. role in shaping both these institutions and international law in general. Present day international jurists and lawyers maybe surprised at Chief Justice Taft’s assertion regarding the Permanent Court of International Justice: “Now we have a court in the League of Nations. It is a great institution…That court is an American invention and it derives its strength from American tradition.” (Even though the U.S. rejected the League of Nations, it played a key role in building the Permanent Court of International Justice.)
Chief Justice Hughes focused his speech on the development of international lawyers and legal scholars because of the stagnant progress of codification and enforcement of international law. He stated “that the best hope of the world today…lies in the establishment of a permanent court of international justice.” One can credit Justice Roberts with giving possibly the most optimistic and idealistic speech in the collection. In his address he expressed the belief that the best way to build international law was to construct a “supra-national government,” or a global federal system, to include a legislature, executive, police force, and judiciary. He compared the idea to the federal system in the United States.
The three addresses given by Justice Jackson to the ASIL Annual Meetings in 1945, 1949, and 1952, comprise the collection’s second group. Justice Jackson’s speeches demonstrate that he too was a strong supporter of international law. His 1945 address picked up where those of Taft, Hughes, and Roberts left off. He believed the world must “devise instruments of adjustment, adjudication, and conciliation, so reasonable and acceptable to the masses of people that future governments will have always an honorable alternative to war.” Borgen separates Justice Jackson’s speeches from the first set because of his focus on the relationship between the individual and international law, as opposed to viewing international law as only applicable to state entities. Justice Jackson’s interest in exploring individual culpability is certainly understandable, given his service as chief prosecutor for the International Criminal Tribunal at Nuremberg in 1945-1946. During his 1952 address he discussed the difficulties faced with prosecuting individuals for the crime of aggression and his desire to see that an “international criminal statute…make explicit much that the London Charter for its purposes safely left to implication.” Another theme running through Justice Jackson’s speeches was his understanding that even though the United States would not always agree with certain developments in international law, “we cannot successfully cooperate with the rest of the world in establishing a reign of law unless we are prepared to have that law sometimes operates against what would be our national advantage.”
After Justice Jackson’s speech in 1952, no sitting Supreme Court Justice spoke at the Annual Meeting until Justice Blackmun in 1994. As Borgen notes, this 42-year gap meant that during the virtual entirety of the Cold War there was no dialogue between the ASIL and the Supreme Court.
Borgen’s distinction between the early speeches and those beginning with Justice Blackmun’s is fairly straightforward: “gone were the designs of building international institutions…Instead, the speeches...focused on what they know best, the hard work of judging claims before a court.” He argues that the American judiciary is now more interested in seeing how the “Law of Nations” can be applied in the “Nation of Laws.” He asserts that the beginning of Justice Blackman’s speech thematically links it with those of O’Connor, Breyer, Scalia, and Ginsburg: “I am here tonight to speak about…the place in American jurisprudence for… ‘a decent respect for the opinions of mankind.’”
Borgen places Justice Blackmun’s speech in the third category, together with that of Justice O’Connor. The Blackmun speech dealt with treaty interpretation in the United States, disputes over the status of aliens, and using foreign opinions when examining the constitutionality of the death penalty. While Justice Blackmun displayed a clear enthusiasm for international law, he limited its relevance to a discussion of how it is applied in the United States, not what role the U.S. can take in its development. Justice O’Connor did the same while voicing her own support of international law, albeit less optimistically than did Justice Blackmun. She stated that “international law and the law of other nations are rarely binding upon our decisions in U.S courts.” But she did argue that the American judiciary should engage in “transjudicialism,” allowing decisions from foreign tribunals to act as a “persuasive authority” in domestic cases.
The fourth and final group in the collection, according to Borgen, involves “a conversation on the citation of foreign law in American legal opinions.” Justice Breyer presented several reasons for his belief that international law should factor into the work of the American judiciary: foreign law is increasingly implicated in domestic legal situations, foreign legal materials and court decisions can offer “points of comparison,” and foreign legal decisions provide the opportunity for interaction with foreign judges. Justice Scalia dealt with the value of foreign law in a much different way. He took the position “that modern foreign legal materials can never be relevant to an interpretation of—to the meaning of—the U.S. Constitution,” preferring instead to cite legal materials from 18th century England in his decisions. Justice Scalia’s belief is that comparative study involving foreign legal materials can be used to help change legislation in the United States, but not for “judicial updating of the U.S. Constitution.” The final speech in the compilation is Justice Ginsburg’s 2005 address. Her view of the value of citing foreign law in U.S. court decisions is more in line with that of Justice Breyer. Her position is best summed up by her observation that “we are not so wise that we have nothing to learn from other democratic legal systems.” Justice Ginsburg stated that judges must “read our Constitution as belonging to a global 21st century,” thus promoting the value of judicial learning from foreign legal experience.
The book ends with the last words of Justice Ginsburg’s speech. After reading the full-text of each of the eleven speeches, one can easily see that views of international law among members of the American judiciary have certainly changed since the founding of the American Society of International Law in 1906, at least as those views are reflected in speeches of certain justices of the Supreme Court of the United States. This was Professor Borgens intent in collecting and publishing them. He admits that this view “is relatively narrow.” However, this small volume does provide the reader with very useful historical perspective on the role of international law in the United States. It is a valuable contribution to the literature about international law.
By James G. Apple, co-editor of the International Judicial Monitor and President, International Judicial Academy; and Christine E. White, International Judicial Academy
International
Judicial Monitor