The Court and the World: American Law and the New Global Realities. By Stephen Breyer. New York: Alfred A. Knopf, 2015. Pp. viii, 382. Index. $27.95.
Stephen Breyer has served as an associate justice on the United States Supreme Court for over twenty years. He is considered to be one of the liberal members of the Court and is known for his pragmatic approach to judicial decisionmaking, an approach often associated with case-by-case balancing, rather than application of bright-line rules. He has also developed a distinctive voice in cases concerning international affairs. In particular, he has advocated--sometimes on behalf of a majority of the Court, but more often in concurring or dissenting opinions--for a greater and more context-specific focus on considerations of international comity. (1)
Justice Breyer has written several books while serving on the Court. His first two books concern constitutional and statutory interpretation and the general role of the judiciary. (2) In his most recent book, The Court and the World: American Law and the New Global Realities, Justice Breyer has shifted his attention to the increasingly "'foreign' aspect of the Court's docket" (p. 4)--that is, to cases involving non-U.S. citizens or activities occurring at least partly outside the United States. He notes that such cases are "no longer unusual" (p. 3) and that they pose particular challenges for him and his colleagues on the bench, such as in obtaining the information that they need to make sufficiently informed decisions.
The book is divided into four parts, covering national security, statutory interpretation, treaty interpretation and application, and direct interactions among judges. Throughout the book, Justice Breyer provides detailed descriptions of relevant Supreme Court cases--both historic cases and cases decided during the time that he has served on the Court. In addition to making a variety of observations about particular legal issues and trends, Justice Breyer uses these cases to develop two general themes: first, that the judicial resolution of international disputes, if pursued with sensitivity to the interests of other nations, can contribute to the international rule of law; and, second, that U.S. judges increasingly need to take account of foreign laws, procedures, and practices (p. 6). As he observes in the introduction and elsewhere, " [T]here is no Supreme Court of the World with power to harmonize differences among the approaches of different nations" (id.), so if national courts are going to address modern problems they need to work collaboratively. For this and other reasons, "judicial awareness can no longer stop at the border" (p. 4).
In part I of the book, which encompasses the first four chapters, Justice Breyer discusses cases that present tensions between national security and individual liberty. He suggests that the Supreme Court has been "steadily more willing to intervene and review presidential decisions affecting national security" (p. 13). At times in the past, he notes, the Court has followed Cicero's statement, "[s]ilent enim leges inter arma"--that is, the laws are silent during wartime (p. 15). U.S. courts did little to protect individual liberties during the American Civil War, World War I, and World War II, he notes, and some lower courts invoked the political question doctrine as a basis for declining to adjudicate issues relating to the Vietnam War. At other times, the Court has been willing to resolve cases relating to national security, but it has interpreted presidential power in this area expansively, such as in the "sole organ" dicta in the 1936 Curtiss-Wright decision (3) and the broad deference to the executive branch in the infamous Korematsu decision concerning exclusion of Japanese-Americans from the West Coast during World War II. (4)
The Supreme Court's 1952 decision in the Steel Seizure case, in which the Court held that President Harry Truman had exceeded his authority in seizing the nation's steel mills during the Korean War, (5) marked a shift in the Court's approach, says Justice Breyer. In this decision, he explains, the Court "asserted it was now in the business of reviewing the President's wartime authority, on which it would hereafter enforce limits" (p. 64). The shift in the Court's approach became particularly evident, he suggests, in the Court's "War on Terror" decisions following the terrorist attacks of September 11, 2001 (p. 83). He explains that these decisions continued the trend away from Cicero's aphorism and clarified that the president does not have a "blank check" (p. 13). Moreover, Justice Breyer states approvingly that these war-on-terror decisions reflected a contextual case-by-case approach rather than a bright-line categorical approach.
Emphasizing one of his general themes, Justice Breyer concludes this part of the book by noting how these national security cases require the courts "to engage with new sources of information about foreign circumstances, in greater depth than in the past" (p. 81). He also suggests that U.S. courts should look to how other democracies have handled similar tensions between national security and individual...