Having annexed Crimea as well as swaths of eastern Ukraine and Georgia, Russian strongman Vladimir Putin casts a menacing eye at the Baltics. His new favorite ally, Iran, violated President Obama’s ballyhooed nuclear arms deal before the ink was dry, testing a new class of intermediate-range ballistic missiles designed to be tipped with the very nuclear warheads the mullahs deny coveting. Meanwhile, China flouts international law by constructing artificial islands to bolster its aggressive South China Sea territorial claims. In Europe, a Middle Eastern diaspora wreaks havoc on the continent, exploiting its generous laws on immigration and travel between countries while overrunning communities with Muslim settlers notoriously resistant to Western assimilation.
Rarely in modern history has the inadequacy of law to manage the jungle that is international relations been more starkly illustrated. Yet, according to the United States Supreme Court Justice Stephen Breyer, it is precisely law, as divined by judges, that can tame our tempestuous times. That the judiciary is the institution least competent and least politically accountable for the task is evidently no more an obstacle than the impotence of law itself.
Appointed to the High Court by President Bill Clinton twenty-one years ago, Justice Breyer has been a stalwart liberal—which is to say, a political “progressive” on a court that is increasingly political. He is refreshing nonetheless, even for those of us who recoil from his ideological bent, for his willingness to depart from the Court’s custom of avoiding public debate. Like his colleague and philosophical counterpart Justice Antonin Scalia, Breyer is a frequent public speaker and occasional author on jurisprudential approaches to contemporary challenges. His newest book is The Court and the World: American Law and the New Global Realities.1
The work has much in common with Active Liberty, Breyer’s offering of a decade ago, which the Hoover Institute scholar Peter Berkowitz perceptively pegged as a rationalization of “judicial willfulness masquerading as judicial deference” to democratic self-determination. The Court and the World is similarly a call for judicial supremacy, this time under the guise of international “interdependence.” The courts are once again pitched as an enabling agent of democratic choice, but on a supra-national scale.
The world, though, is a very undemocratic place—though perhaps no more undemocratic than Supreme Court diktats that remove controversies like abortion and “same-sex marriage” from democratic resolution.
How to explain the difference between progressive pretensions to “activate” liberty—i.e., to vouchsafe “the right of all persons to enjoy liberty as we learn its meaning,” as Justice Anthony Kennedy vaporously put it in imposing same-sex marriage on the nation—and progressive judging’s actual affect of curtailing our freedom to live as we choose? This inversion of democracy, it turns out, flows naturally from Breyer’s inversion of the judicial role—a philosophy of judging shared by a working majority of his Court, the bloc of five unelected jurists whose edicts control ever more of what was once democratic space.
“[O]ur American judicial system,” he contends, should “see itself as one part of a transnational or multinational judicial enterprise.” Inconveniently (but, alas, not insuperably), the only “judicial enterprise” licensed by the Constitution, from which federal judges derive their authority, is the protection of Americans from overreach by our government and the remediation of other harms inflicted by third parties in violation of laws enacted by our elected representatives.
Interpreting the law as written—an intellectual challenge that is vital to the rule of law even if not sufficiently stimulating for many a robed social engineer—is not so much an enterprise as a discipline. In our system, it is supposed to be the politically accountable branches that get to do the enterprising. Nor does the discipline of judging take on a “transnational or multinational” character merely because some small percentage of the parties implicated in legal disputes is of foreign extraction—even if, as Breyer rightly observes, modern technology has made the percentage larger by making the world smaller.
What does Breyer see as the objective of this global judicial enterprise? The advancement of “acceptance of the rule of law itself.” This “rule of law,” you’ll no doubt be shocked to learn, bears an astonishing resemblance to the rule of lawyers—in particular, the judges along with the army of equally unelected transnational progressive lawyers who urge them on.
International law is especially fertile soil for growing this empire. It continuously discovers new legal rights—i.e., new progressive pieties that undermine national security, commerce, and bourgeois sensibilities—by the judicial ascertainment of “the general assent of civilized nations.” And how do judges go about finding this “assent”? As Breyer matter-of-factly explains, they explore “the works of jurists and commentators who by years of labor, research, and experience, have made themselves particularly well acquainted with the subjects of which they treat.”
Who needs Congress when we’ve got law professors?
The global “judicial enterprise” Breyer pioneers has done its greatest harm to our national defense. Tracing the history of the judiciary in wartime, Breyer invokes Cicero’s aphorism, “Silent enim leges inter arma” (“When the cannons roar, the laws fall silent”), which is largely seen as our nation’s default setting after the Constitution was adopted. This sensibly owed to the fact that the Constitution commits the conduct of warfare exclusively to the political branches. As late as the post–World War II period, Justice Robert Jackson—a giant in both the political and judicial realms—wrote for the Court:
[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. . . . They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities, nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.
Over time, nevertheless, the Court has disregarded this wisdom, a development Breyer lauds. The Court was ignored by President Lincoln when it attempted to invalidate his suspension of habeas corpus in response to dangerous insurrections by Confederate sympathizers. As Lincoln sagely put it, were the Court to have its way, “all the laws but one”—namely, habeas corpus, the right to judicial review of one’s detention—would be eviscerated and the nation gravely endangered. Still, a pattern developed in which presidents were indulged in their wartime excesses—Wilson’s World War I prosecutions of dissenters were particularly egregious. Civil liberties were then advanced by corrective judicial measures in the wake of war, when the crisis had passed.
Judicial passivity in wartime reached its nadir when the Court endorsed President Franklin D. Roosevelt’s internment of 70,000 Americans of Japanese descent during World War II. Breyer is quite right to see the 1944 Korematsu decision as among the most shameful in American history. This, however, is because the abused persons were American citizens who were not shown to pose a threat and who were treated far more harshly than white American descendants of the other enemy states, Germany and Italy.
That is, the shame lies in the failure to protect non-belligerent Americans within the Court’s jurisdiction. One might also take Korematsu as a cautionary tale about the Court’s fallibility, and thus the folly of vesting it with too much power. Not Justice Breyer, though: he rationalizes the case into a summons to judicial wartime interventions on behalf of anyone anywhere—including the enemy overseas.
Thus: the War on Terror rulings. Beginning in 2004, Breyer and his progressive colleagues issued a series of decisions in which they endowed foreign enemy combatants, captured and held overseas during combat operations endorsed by Congress, with an American constitutional right to challenge their detention in court—notwithstanding that their only connection to the United States was to wage a terrorist war against her. The Court further invalidated efforts to try alien jihadist captives by military commission rather than civilian trial—notwithstanding that the use of military commissions traces back to the Revolutionary War.
The Court’s usurpation of war powers denied to it by the Framers probably owes as much to our culture as to judicial imperiousness. In modern America, victory is no longer seen as the aim of warfare. With our objectives thus muddled, judicial action that compromises combat effectiveness but is portrayed as serving “human rights” is an easier sell. Moreover, our culture has eroded the privileges of citizenship and trembles at the prospect of being thought “Islamophobic.” Consequently, it becomes possible to swallow the preposterous notion that the Constitution—by which Americans created a government for their protection—is intended to safeguard alien terrorists who mass-murder Americans while making war against our government’s forces.
That said, the global “judicial enterprise” proceeds by undoing longstanding protocols of restraint, modesty, and deference to peer branches of government, as well as by giving American law extra-territorial application that would interfere with another country’s conduct of its internal affairs.
Reading Breyer, one can be forgiven for assuming that it must simply be expected that judges should fabricate standards and meddle in governmental or business practices as necessary to reach “just” results. It would never dawn on us that the lack of standards and guidelines could signal areas into which Congress did not intend courts to intrude—or, indeed, that Congress has much to say about these matters at all—even though the Constitution makes it the master of the extent and scope of federal court jurisdiction.
For the most part, the Court thumbs its nose at Congress. In the War on Terror cases, it pleaded with Congress—in an opinion written by Breyer himself—to consult with President Bush rather than abide his unilateral resort to military detention without trial for alien terrorists. When Congress took up the justices’ invitation and codified Bush’s practices, the Court huffed and rejected them anyway. To bring terrorists into civilian court, it invoked a treaty (Common Article 3 of the Geneva Convention) even though treaties are political understandings between governments that do not create judicially enforceable rights. And even to bring the treaty into play, it had to pretend that the global War on Terror then being fought against alien enemies on foreign battlefields thousands of miles from the United States was somehow a conflict of a “non-international” character.
Similarly, in the “enterprise” to develop international judicial standards, the court invokes the once moribund Alien Tort Statute to resolve controversies that have utterly nothing to do with the United States—e.g., kidnapping and torture in Paraguay by the Paraguayan regime against Paraguayan citizens. To pull this off, the courts have extended beyond recognition the venerable “Law of Nations.” Once reflective of a universal condemnation of piracy and crimes against diplomats, it now potentially applies to any act the judges decide should be universally condemned. And, as night follows day, it invites the judges of other nations to reciprocate: condemning American officials for actions taken in, or in defense of, the United States.
Breyer is thoughtful, amiable, accessible, and modest as one can be in advancing a supremacist program. It is almost easy to miss the casual radicalism of his underlying assumptions. He sees law as preferable to other compasses for governance—like, say, self-interest—because it is (or should be) a product of reason. But that is not the half of it. In a democracy, law reflects a singular species of reason: derived from a community’s expression of its principles, from its charter and statutes by which the community declares what conduct should be forbidden, or at least regulated. The rule of law thus presupposes the existence of a community that sees itself as such, and consents to self-government as such.
Consequently, there can thus be no “rule of law” for the world. In addressing legal controversies with international dimensions, Breyer ruefully concedes that “there is no Supreme Court of the world.” That, however, is beside the point. The intractable problem is that there is no “international community,” globalist paeans to the contrary notwithstanding.
The world’s menagerie of nation-states, federations, spheres of influence, sub-sovereign factions, insurgencies, and terror networks cannot constitute a community. Indulging the fantasy that it does is profoundly anti-democratic and hostile to individual liberty, the principle the Constitution most cherishes. Democracy and liberty must necessarily be degraded if they are to commune with authoritarian forms of governance.
So in the real world, we have conflict without community: constant competition among divergent peoples, their interests pursued by leaders accountable only to them—and often not very accountable at that. How do we arrive at consensus, or at least a modus vivendi, in international relations? By understanding that it is the domain not of law but of politics—diplomacy, alliances, espionage, economic pressure, and the specter or reality of force. As Justice Jackson recognized, international relations must be committed to the political branches because there are no overarching legal standards and enforcement mechanisms to govern it, no democratic representation to assure that all key decision-makers are politically accountable to the people whose lives are affected.
Of course the courts are vital, but in their place. That is not the place envisioned by Justice Breyer: global maestro. American courts, however, are a core component of our government and thus the servant, not the master, of our people. They ensure our rule of law. Thus fortified, it is the United States, not a congeries of jurists and international law professors, that remains the indispensable force for good in a troubled and dangerous world.
1 The Court and the World: American Law and the New Global Realities, by Stephen Breyer; Knopf, 400 pages, $27.95.