Distinction with a Difference

In the last few weeks, two Supreme Court justices have defended the court's application of "international law" in its rulings.

On May 13, Justice Kennedy is quoted in this law.com article as saying, "It's really quite wrong to say that the Supreme Court ignores international law and doesn't understand it." Taken in context with Kennedy's majority rulings in Lawrence and Roper, this quote makes zero sense, and I don't know the context in which it was said. But it seems like a strange quote to pull out of a speech.

Then a talk by Justice Stevens is headlined at MSNBC, "Supreme Court justice defends use of intl. law." The AP story doesn't actually mention international law, so maybe it's just the headline writer's mistake. Here's the lead paragraph in the May 24 story: 'Allowing U.S. courts to consider the views of other judges — including international jurists — while making a decision is a responsible practice, Supreme Court Justice John Paul Stevens said during a speech Monday."

I don't think anyone has a problem with international law being applied to U.S. cases. If, that is, international law is taken to mean a treaty to which the United States is a signatory: copyright laws, piracy laws, the Geneva Conventions, etc.

There's a big difference between treaties to which the U.S. is bound and the "views of other judges -- including international jurists." As when Justice Breyer cites the rulings of the Zimbabwe Supreme Court in formulating his opinion on execution delays.

That's foreign law, not international law. If Justice Stevens believes that's a responsible practice, well, a lot of people disagree.

What brought the Kennedy & Stevens speeches to mind was this item at the Volokh Conspiracy (via SCOTUSblog), citing a post at the American Constitution Society blog. The ACS uses "international law" in the headline, but in quoting Rep. Tom DeLay during a radio interview. I hope DeLay knows better and simply misspoke. But the ACS blog, in disparaging more substantive arguments by Justices Scalia and Thomas, does make the distinction.

All of this does make me wonder, though, if there's a move afoot to blur the distinction. If the public sees no difference between foreign and international, it becomes more difficult to effectively criticize the court for citing foreign law -- and easier for judges to disingenuously defend themselves as internationalists.

*****Pejman, I think, found the ACS post offensive.