By Ashish S. Joshi, Editor-in-Chief
Litigation magazine
In the spring of 2016, I interviewed Justice Stephen G. Breyer in his chambers at the Supreme Court.
He had recently published his book, “The Court and the World” (Knopf 2015). The book, widely acclaimed as original, far-reaching, and timely, examines the work of the Supreme Court in an increasingly interdependent and globalized world.
Breyer, analyzing several key decisions of the Supreme Court, points out that as the world grows smaller, or to quote New York Times columnist Thomas Friedman, “flatter,” the Court’s horizons have inevitably expanded. Issues that used to or could be considered as “other people’s” problems are no longer considered as such; what happens in Thailand may very well have real consequences – monetary or otherwise – in Washington.
And as such, the “foreign” aspect of the Supreme Court’s docket is on the rise. Breyer’s book attempts to answer the question: How can America’s highest court decide American cases and interpret American laws so that they might work efficiently and in harmony with similar laws in other nations?
Justice Breyer received a B.A. in philosophy from Stanford University in 1959. He then studied philosophy and economics at Oxford as a Marshall Scholar and earned a law degree at Harvard.
From 1964-65, he clerked for Justice Arthur Goldberg. He was a special assistant to the United States Assistant Attorney General for Antitrust from 1965-67 and an assistant special prosecutor on the Watergate Special Prosecution Force in 1973.
Breyer taught law at Harvard Law School from 1967-94. He was chief counsel to the Senate Judiciary Committee from 1979-80 and was then confirmed to a seat on the U.S. Court of Appeals for the First Circuit.
After serving as chief judge of that court, he joined the Supreme Court in 1994 following his appointment by President Bill Clinton.
Although the issue of American jurists citing foreign courts’ decisions continues to raise controversy in political debates, the nation has a well-established legal
tradition of learning from foreign sources.
After all, Abraham Lincoln learned law from Blackstone’s Commentaries, and our supreme court justices from John Marshall to Felix Frankfurter have referred to foreign courts’ decisions in their opinions.
Judges routinely refer to and cite various sources in their judicial opinions. Why not a foreign judge’s decision?
As Breyer disarmingly puts it in his book (Page 240): “If someone with a job roughly like my own, facing a legal problem roughly like the one confronting me, interpreting a document that resembles the one I look to, has written a legal opinion about a similar matter, why not read what that judge has said?
I might learn from it, whether or not I end up agreeing with it.”
Joshi: “The Court and the World” is a fascinating read. What made you write this book? Was there an “aha!” moment?
Breyer: Yes, I can’t tell you at what time, but I suddenly began to realize that the number of cases in which in order to decide them correctly or reasonably, you have to know something about what’s going on abroad, was growing rapidly.
When I first came to the court, you hardly saw such a case. They existed but there weren’t too many.
I would say when I started writing the book there probably were 15 or 20 percent, perhaps. That’s a lot. And these are cases where you must know what’s going on beyond the borders. And for the most part it is not controversial.
If you involve a treaty, you have to know how other countries are interpreting the treaty in order to save a sensible interpretation yourself. There’s unanimity in this court on that statement that I just made. And we had more and more cases involve requirements to know something about terrorism, which is international, and how other countries treat it; cases involving human rights, such as the Alien Torts Statute; cases involving commerce; cases involving international organizations; everything under the sun ….it became once I started thinking about it, obvious. And I think people should know that.
Joshi: On a practical note, have you seen a significant increase in the filing of amicus briefs before the Supreme Court that highlight how the rest of the world has decided on a particular issue?
Breyer: Yes, absolutely! For example, I was surprised on a copyright case [Kirtsaeng v. Wiley] where a young student from Thailand, who was a student at Cornell, discovered the price of books is less expensive in Thailand.
Same books, same words, written in English, but done abroad under license from the publisher, much cheaper. He told his parents, “send the books,” and they sent quite a few, and he sold them. Does he have the right to do it or not? That is a very technical question in fact in copyright law.
And so I was surprised to see in my office dozens and dozens of briefs, including amicus briefs from lawyers in England, from lawyers in Asia, from governments all over the world, and quite a few briefs from foreign lawyers or American lawyers representing foreign institutions of various kinds.
My point here is: “Why?” Because we are told that copyright today does not simply affect books or even books, films, and music. Automobile software is copyrighted. Go into any store and look at the goods. They have labels.
The labels are copyrighted and many of those goods come from abroad. At the end of one the briefs, it said your decision will affect 2.3 trillion dollars’ worth of commerce. That’s huge, isn’t it? That’s why we get the briefs, because that’s today’s world and it has nothing to do with the philosophy of a particular judge. It has everything to do with the nature of the world today.
Joshi: But was that case an outlier? Or is there a trend here that you can see?
Breyer: No, I can find similar cases. We had, which I wrote about in the book, a question of a vitamin distributor from Ecuador who says there is an international cartel illegally raising the price of vitamins. And he sues a Dutch member, or who he claims is Dutch member, and he wants this suit, with an Ecuador plaintiff and a Dutch defendant, to take place in New York.
Why? Not because he was so weak lacking vitamins that he couldn’t get to Europe, but because we have treble damages. That’s why. So, that is going to affect, by the way, lots of other countries’ antitrust laws. So we have briefs from the EU, we have briefs from Japan, Canada, all over the place telling us how our decision will affect their law.
Similarly, we had a discovery case involving two companies in Los Angeles. They wanted to get discovery A against B to send it to the EU. Again, briefs by the EU telling us what the effect will be, which they thought would be bad. They didn’t want it.
And cases involving an effort to apply our securities law to a purchase of a foreign security in Australia. The plaintiff is Australian, he bought securities in Australia over an Australian exchange of an Australian company, but the fraud involved alleged that Australian company buying a company that had overstated its assets in Florida.
It isn’t surprising that we got briefs from many countries explaining how their securities law worked and why it was or was not a good idea. They basically thought it was not a good idea to extend our securities law, and we didn’t in that situation.
Henry Friendly, I think, would have come to the opposite conclusion. He was a great judge, 2nd Circuit, one of our greatest judges, but he was writing at a different time. And the problems of the world were not the same. And it was not true that all of the countries at that time had their own securities law. Today they do.
So today, cooperation through this notion called comity does not simply mean “stay out of it America if you’re going to interfere.” It means, “try to find interpretations where American law, through its language being not clear and uncertain, will promote a kind of harmony among the enforcers, for example, or other laws of other countries.”
Look for the harmonious interpretation as a plus, not just “stay out of it.” Again, that’s a change in the nature of the world. Because so far we have had antitrust, we have had discovery, we have had human rights, we’ve had copyright, and there are a lot of areas.
Joshi: The part of your book that deals with the power of the executive during wartime is fascinating. It shows how the legal landscape has shifted. From the time of the American Civil War to the present “War on Terror,” the pendulum seems to have swung from the Court’s attitude of utmost deference towards the President to refusing to give the executive branch a “blank check.” How did that change come about?
Breyer: In my own opinion, I think it really shows a couple of things. It came about because Cicero said “in time of war, the court should stay out of it.” Just “don’t decide, let the other branches decide in time of security crisis, in times of war.” But that led in World War II to 70,000 American citizens of Japanese origins removed from their homes and put in camps. And the Supreme Court approved that 6 to 3.
Three justices — Jackson, Murphy, and Roberts — were horrified at this. There was no rationale for it; there was no basis. But Justice Black, who was a great civil libertarian, wrote the opinion and he said in conference, “Well, somebody has to run this war, either us or Roosevelt. And we can’t, so Roosevelt has to.” That’s Cicero for you. And it led to, however, a result that most people feel is just terrible.
So the Steel Seizure case is very interesting — a fascinating case. It is during the Korean War and Jackson writes the best known opinion and he says, “No, there has to be a limit, there has to be a limit.”
He was trying to limit President Roosevelt. Of course, President Roosevelt was dead and it was much easier at that time to limit President Truman because he wasn’t as popular as President Roosevelt. And they did limit President Truman.
Given that, the Guantanamo cases, where our Court did interfere and said “there is no blank check,” are not surprising to me.
Joshi: Why?
Breyer: Because we only have a couple of choices. You want to put 70,000 American citizens of Japanese origin for no reason in camps? Absolutely not. That’s one thing that’s changed.
And your choice is either do that, or write what Sandra O’Conner said in those cases—“no blank check.”
The trouble with that is, well, what kind of check does it write? And the Court will have to be involved to decide that kind of thing.
But today, perhaps because of desegregation, perhaps because of Brown, perhaps because people have more confidence in courts, for that or other reasons, they are more willing to do what courts say.
And I think that is true throughout the world because people as a general matter since the end of World War II have come to the conclusion that the rule of law does mean sometimes accepting cases you don’t like and following them.
Why? Because the alternatives to the rule of law are worse.
Not everyone thinks that. There are vast areas of the world where they don’t. So it is in a sense an intellectual battle, or battle for the hearts and minds of people,
between those who have some confidence in the rule of law and those who do not.
And part of this is again aimed to describe what the problems are for those who have confidence in the rule of law and say ‘we better win.’
Joshi: Part four of your book is titled, “The Judge as a Diplomat.” How do you see yourself and your colleagues as diplomats in this world?
Breyer: Well, sometimes it means as Woody Allen said, just showing up. Sometimes it means sitting around and talking a bit. The Indian Supreme Court has been here several times; I’ve been there several times. And sometimes you find we have the Canadians, who were just here.
Sometimes in those discussions you find something very practical. We talked about amicus briefs and they have a process somewhat different. We talk about the shape of the table. We talk about a lot of different things.
It also means if you read some foreign opinions—you don’t have to have to read them all the time, but if they are called to your attention by the lawyers—you learn something. And that’s helpful.
An appellate judge mostly has a job where he sits in a room and he reads and writes. And what he reads and writes is in part affected by the lawyers.
Though this is written from the point of view of the judge, it is absolutely apparent to any attorney that the judge isn’t going to know anything about anything unless he tells him in the brief, and therefore it is imperative that the lawyer knows how to find out what is relevant and what is going on beyond our shores.
And lawyers won’t unless the law schools teach them where to look and how to find it. And the law schools won’t do it unless they know lawyers use it. And lawyers won’t do it unless they know that the judges feel it could be significant.
Therefore it is a circle. I think a virtuous circle. The circle of our profession is law professors, and lawyers, and judges.
The judges write the opinions, the lawyers help them write the opinions, the law professors evaluate, each reads the work of the others and, gradually, we hope for improvement.
Joshi: On a different topic, you have been an outspoken advocate for the need of judicial education in science, that judges need to be trained in how to evaluate scientific testimony.
Breyer: They’re going to have cases where there is science in front of them and they are going to have to deal with it.
Joshi: There was an incident that you mentioned in your book – about watching the unfortunate events of 9/11 unfold on television during your and Justice O’Connor’s visit to India. You saw that Indian judges were as horrified as the two of you were.
And you realized that their reaction represented more than empathy. You remarked that the important divisions in this world are not geographical, racial, or religious, but are between those who believe in the rule of law and those who do not. Can you please elaborate?
Breyer: I mean the same thing I said when I said, “We have a choice.” Those who believe in the rule of law as a way of solving human problems, the problems of people who live together in communities, had better be on their toes to demonstrate that we can help with those problems after all.
Some time ago, I told that to the Chief Justice of Ghana, and she said, “Well what is the secret to getting people to do what you want?” She’s trying to bring about more democracy and more protection of human rights through the courts. I said, “There is no secret.”
I don’t know the secret, I can just give you examples over the course of 200 years, we did have the Civil War, we did have slavery, we did have legal segregation, we had all kinds of things in this country but gradually we overcome some of them and gradually the rule of law has taken hold. That’s what we’re trying to do.
Why?
The alternative is you go turn on the television and you see people killing each other. That’s a very bad way to solve the problem.
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This abridged version of the interview with Justice Breyer is reprinted with permission from Litigation magazine (Winter 2017). The author is the owner of Lorandos Joshi PC and editor-in-chief of Litigation magazine.
