On March 11

On this day in ...
... 1936 (75 years ago today), Antonin Scalia (prior posts) was born in Trenton, New Jersey. Following unanimous approval of the U.S. Senate, he became an Associate Justice of the Supreme Court in 1986. In the quarter-century he's served, he's become noted for an outsized personality and for espousal of a version of originalism that precludes recognition of many individual rights, such as the right to be free from criminal punishment for same-sex intimacy and the right to choose whether to terminate a pregnancy. (credit for AP photo)

(Prior March 11 posts are here, here, here, and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'I don’t even have to read the briefs, for Pete’s sake.'

-- U.S. Supreme Court Justice Antonin Scalia (right), in a just-published interview with California-Hastings Law Professor Calvin Massey, about which we also posted here. (2008 photo credit) Scalia spoke in explanation of the scope of questions that he deems easily decided by his originalist approach to constitutional interpretation. In the Justice's words:

'We don’t have the answer to everything, but by God we have an answer to a lot of stuff ... especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide ....'

Supreme balance shift

In her essay for "Women and International Criminal Law," our special edition of International Criminal Law Review (prior posts) now in production, IntLawGrrls guest/alumna Patricia M. Wald writes that

women judges (men too of course) have to be recognised as smart, fair, and hardworking if they are to wield influence ...

It appears the 2 newest arrivals to the U.S. Supreme Court got an advance copy.

Appears, too, they've heeded this sage advice from Wald, onetime Judge on the International Criminal Tribunal for the former Yugsolavia and Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit.
Judging from recent reports, 2 voices are likely to be heard once the Court takes the bench to hear oral arguments this morning: the voices, that is, of Justices Sonia Sotomayor (above left) and Elena Kagan (above right). (credit for Dec. 26, 2010, Steve Petteway/Supreme Court / photo, also depicting Justice Ruth Bader Ginsburg at center)
Since Kagan was seated at the beginning of this October Term 2010, "the tenor of the debate has changed," David Savage, Supreme Court correspondent for the Los Angeles Times, recently reported. For years, he wrote, "Supreme Court conservatives led by Justice Antonin Scalia dominated the debates during oral arguments." But now Sotomayor and Kagan "have joined the fray and reenergized the liberal wing."
Bolstering Savage's assessment was a report by New York Times Supreme Court reporter Adam Liptak. The title pretty much said it all: "Sotomayor Guides Court’s Liberal Wing." She does so, he wrote, by close questioning and incisive commentary that, taken in combination, reveal -- dare one say empathy? Liptak preferred to say that

she has displayed a quality — call it what you will — that is alert to the humanity of the people whose cases make their way to the Supreme Court.

An example of this combination, from an article by the Wall Street Journal's Jess Bravin, regarding a recent oral argument on California prison conditions:

'When are you going to avoid the needless deaths that were reported in this record?' Justice Sonia Sotomayor said at arguments on Tuesday. 'When are you going to get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?'

Amid reports that these new, "smart, fair, and hardworking" Justices may be shifting balance on the Court, Justice Scalia publicly renewed his attacks on substantive due process applied to enforce rights of women (and, here, gays).

Coincidence?

Extraterritoriality in flux?

In a just-published ASIL Insight, our colleague Paul B. Stephan sees more than securities laws at stake in the recent U.S. Supreme Court trimming of extraterritoriality.

Stephan, both the John C. Jeffries, Jr., Distinguished Professor of Law and the Elizabeth D. and Richard A. Merrill Professor of Law at the University of Virginia, deftly detailed Justice Antonin Scalia's opinion for the 5-member majority in Morrison v. National Australia Bank Limited (June 24, 2010). (credit for below left photo) Other thought-provoking discussions of this decision were posted here, here, here, and here at Opinio Juris.

In Morrison, the Court affirmed dismissal of a lawsuit alleging civil fraud in violation of § 10(b) of the Securities and Exchange Act of 1934 and its implementing Rule 10b-5. The suit, to quote Stephan's Insight, "involved only foreign plaintiffs, securities issed by a foreign company, and transactions in those securities that took place exclusively in a foreign country." Scalia's opinion underscored that there is a presumption against extraterritoriality, one that requires "Congress to clearly indicate when it wanted its rules to apply to foreign conduct."

Stephan termed the decision "a firm and unambiguous rebuke" of the tendency by some lower courts to give securities laws greater extraterritorial reach. That pronouncement pretermits the contrary viewpoints of the 3 remaining Justices (Sonia Sotomayor did not participate): Stephen G. Breyer, in a separate opinion that suggested the suit yet might go forward under other federal statutes, concurred only in part, while John Paul Stevens and Ruth Bader Ginsburg concurred only in the judgment and not at in the majority's reasoning; indeed, their joint opinion opened with the declaration that they

would adhere to the general approach that has been the law in the Second Circuit, and most of the rest of the country, for nearly four decades.

Nonetheless, the pronouncement is accurate as a matter of counting current Court noses.

As interesting as the description of the judgment is Stephan's additional observation. He rightly wrote that

one must wonder what Morrison implies about other statutes.

Particularly noted is the means by which noncitizen plaintiffs have sought relief in U.S. federal courts for torts committed in violation of the law of nations or U.S. treaties. That means, of course, is Alien Tort Statute (prior IntLawGrrls posts). Alien Tort cases have involved events in all corners of the earth. "The Justice Department in several briefs has argued that the presumption against extraterritoriality applies to this statute," Stephan wrote (citing this 1 U.S. amicus brief, which dates from the 2d term of President George W. Bush). The Insight adds that "[s]cholarly support exists" for such a position. All may be tested soon: Stephan noted that the question's presented in Talisman Energy (photo credit), an Alien Tort case involving the oil field in Sudan, which the Supreme Court has been asked to review.

Another thought jumps to mind:

Any chance that a Court cutback campaign might reach to a sector in which extraterritoriality has grown steadily, with judicial approval, in the years of the so-called wars on drugs and terror? That is, to extraterritorial criminal jurisdiction?

Comparative colloquy at the Court

Law beyond borders unexpectedly emerged as a topic for discussion at the Supreme Court a few days ago.
That foreign context would be discussed in Samantar v. Yousuf, the Alien Tort Statute case argued Wednesday (prior posts here and here), was a given. But who thought that practices abroad might inform discussion a day earlier of whether the 2d Amendment limits local gun control laws? Yet they did, and more than once.
The official transcript shows that early in oral argument, the attorney for petitioners in McDonald v. City of Chicago, Alan Gura, contended that owning a gun not only is guaranteed by the 2d Amendment, but also is among the unenumerated "privileges and immunities" guaranteed by the 1st section of the 14th Amendment. His likening of gun ownership to other privileges and immunities he said are enjoyed by U.S. citizens prompted this exchange with Justice Ruth Bader Ginsburg (below right), who concurs with the Court's occasional efforts at comparative constitutionalism but who dissented in last Term's gun-rights case, District of Columbia v. Heller:

JUSTICE GINSBURG: Did married women at that time across the nation have the right to contract, to hold property, to sue and be sued?
MR. GURA: Married women were considered citizens of the United States, just like children were considered citizens. However, the law did not always protect people fully, and we've made great strides in this country giving a greater level of protection to certain rights. We understand certain rights better today than we did 140 years ago, and the fact that First Amendment rights were not fully respected, Second Amendment rights were not always respected, Fourth Amendment rights were not always understood well –
JUSTICE GINSBURG: Does it work just one way? I mean, if the notion is that these are principles that any free society would adopt, well, a lot of free societies have rejected the right to keep and bear arms.
MR. GURA: ... American history and tradition are important to consider what rights are protected in this country. It's true that our friends overseas who have more or less civilized, free societies don't respect rights to the same level that we do. For example, England, which is a free society, has a monarchy. They have hereditary lords in parliament. They don't have First Amendment protection.
JUSTICE GINSBURG: But then it's not one expression of this unenumerated rights, natural rights, or the rights that any free society -- basic to a free society. So you -- you have to trim your definition. It's not basic to any free society. (pp. 9-10)

Analogous inquiry arose later. Chicago's attorney, James A. Feldman, asserted that no right could be held to constrain states and local governments unless it was "implicit in the concept of ordered liberty"; that is, unless it satisfied a time-honored substantive due process test, one that the Court at times has applied after consulting foreign context (a methodology about which I've written here and here). Justice Antonin Scalia (below left), author of the majority opinion in Heller, countered. He referred to the United States' jury-trial right, one that the Court, reversing precedent, held to be fundamental in Duncan v. Louisiana (1968):

JUSTICE SCALIA: Is the right to trial by jury implicit in the concept of ordered liberty? ... My goodness ... there are a lot of countries that don't give the right to trial by jury, even England does not give it in all criminal cases.
MR. FELDMAN: I think it is in the following sense, when you are talking about a procedural right that is embedded in a particular procedural system, you have to look at how that system operates and how the -- the right works within that particular system. (p. 30)

Agreement came from Chief Justice John G. Roberts, Jr. (below right), who joined the majority in Heller and who'd spoken against consulting foreign law during his confirmation hearings:

CHIEF JUSTICE ROBERTS: I think that's exactly -- that's exactly right. And that is what the Court elaborated on in Duncan. I do think the focus is our system of ordered liberty, not any abstract system of ordered liberty. You can say Japan is a free country, but it doesn't have the right to trial by -- by jury.
The -- the -- the concept only makes sense, I think, if you limit it to our system.
Under our system, as you said, the -- the right to a jury is essential.
MR. FELDMAN: I -- I agree -- I -- I -- I think that's right. ...

At this rather hesitant concession, the Chief Justice jumped in:

CHIEF JUSTICE ROBERTS: Well, if you think that's right, why wouldn't you think, for all the reasons given in Heller, that the Second Amendment right is essential to our system, whatever it may be with respect to France or England or anywhere else? (p. 31)

Roberts' rejoinder well may have left Feldman regretting this half-step into comparative constitutionalism on the matter of individual gun ownership and state regulations intended to protect public safety.

On January 28

On this day in ...

... 1916, in what The New York Times called "a complete surprise to the country," Boston-based attorney Louis D. Brandeis was nominated to become an Associate Justice of the United States' highest court. Just days before, The Times reported, Brandeis had spoken at a meeting called "to demand equal rights for the Jewish people"; upon his confirmation 5 months later, "after a tumultuous hearing process," Brandeis became the 1st Jewish man to serve on the Supreme Court. (credit for portrait of Brandeis by Andy Warhol) Other Supreme Court 1sts include (test your knowledge of Court trivia before clicking on the answer):

► 1st non-U.S.-born Justice, a man;
► 1st Roman Catholic, a man;
► 1st Asia-born Justice, a man;
► 1st African American, a man;

► 1st woman of any background;

► 1st Italian American, a man;
► 1st Jewish woman; and
► most recently, as we've posted, the 1st Latina.

(Prior January 28 posts are here and here.)

International law hairshirt

Still itching from that hairshirt Judge Sonia Sotomayor had on all last week.

No, not that hairshirt. The Mad Men overtones were so obvious -- lots of wise words and wisecracks swirling about the male-dominated dais, while all small-screen viewers could see that "Miss Olson" was among the brightest bulbs in the room -- that more comment of the sort seems hardly worth the effort. (EveryPundit apparently thought otherwise this weekend, though; see, e.g., here, here, and here.)

No, what gave this IntLawGrrl an urge to scratch was Sotomayor's international-and-foreign-law hairshirt.

Four days of hearings revealed a Capitol Hill consensus that before this nominee could win confirmation -- now expected the 1st week of August -- she was going to have to do penance for the presumed sins of her soon-to-be colleagues on the U.S. Supreme Court. (credit for hearing photo)

The Justices have sinned, it seems, by stating honestly that consultation of international or foreign legal norms had aided their decisionmaking. As I've written here, here, and here, every Justice on the Rehnquist Court -- including the oft-cited critics of the practice, William H. Rehnquist, Antonin Scalia, and Clarence Thomas -- did it now and again. No Justice ever claimed that a look at the reasoning of other learned judges had compelled her or his conclusion. Each made clear that although on occasion such reasoning might have persuasive power -- as might an article in a U.S. law journal or the opinion of judges sitting in 1 of the 50 states -- it never binds the Court to arrive at a particular result. For a long time consultation was unobjectionable; indeed, unobjected-to. But after Justices used this methodology in the course of reversing 3 Rehnquist-era precedents respecting same-sex sodomy and capital punishment of children and mentally retarded persons, some, including some Republicans in Congress, called for judicial impeachments (pp.1571, 1579).

Thus a Democratic Senator, Charles Schumer (below left) of New York, was tasked on Day 2 of the hearings to inoculate Sotomayor against international-law infection:

SEN. SCHUMER: ... Just so the record's a hundred percent clear, what do you believe is the appropriate role of any of foreign law in the U.S. courts?
JUDGE SOTOMAYOR: American law does not permit the use of foreign law or international law to interpret the Constitution. That's a given, and my speech explained that .... There is no debate on that question. There's no issue about that question.
The question is a different one because there are situations in which American law tells you to look at international or foreign law, and my speech was talking to the audience about that. And in fact I pointed out that there are some situations in which courts are commanded by American law to look at what others are doing. So, for example, if the U.S. is a party to a treaty, and there's a question of what the treaty means, then courts routinely look at how other courts of parties who are signators are interpreting that. There are some U.S. laws that say you have to look at foreign law to determine the issue. So, for example, if two parties have signed a contract in another country that's going to be done in that other country, then American law would say you may have to look at that foreign law to determine the contract issue. ...

SEN. SCHUMER: Right. And you've never relied on a foreign court to interpret U.S. law, nor would you.
JUDGE SOTOMAYOR: In fact, I know that in my 17 years on the bench, other than applying it in treaty interpretation or conflicts-of-law situations, that I have not cited to foreign law.

That did not satisfy other Senators, however. Among those returning to the issue on Day 3 was Sen. Jeff Sessions (R-Ala.) and Sen. Tom Coburn (R-Texas) (below right); the latter elicited this colloquy:

SEN. COBURN: So there—you stand by the—there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions, based on the Constitution or statutes?
JUDGE SOTOMAYOR: Unless the statute requires you or directs you to look at foreign law—and some do, by the way—the answer is, no, foreign law cannot be used as a holding or a precedent, or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law.

Sotomayor then drew a verbal distinction:

JUDGE SOTOMAYOR: [T]here's a public misunderstanding of the word "use" in what I was talking about. One doesn't use those things in the sense of coming to a legal conclusion in a case.
What judges do—and I cited Justice Ginsburg—is educate themselves. They build up a story of knowledge about legal thinking, about approaches that one might consider. But that's just thinking. It's an academic discussion when you're talking about
thinking about ideas than it is how people think about the citation of foreign law in a decision. They assume that a—if—if there's a citation to foreign law, that's driving the conclusion. In my experience, when I've seen other judges cite to foreign law, they're not using it to drive the conclusion. They're using just to point something out about a comparison between American law or foreign law. But they're not using it in the sense of compelling a result.

On Day 4, Coburn pressed for Sotomayor to "affirm" on the issue, and she complied:

JUDGE SOTOMAYOR: I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws, except in the situations where American law directs a court.

Feeling itchy?

The distinction confounds -- "use" doesn't mean a conclusion's compelled, but "interpret" does? Yet it was totally in keeping with the penance apparently expected of this nominee, by Senators on both sides of the aisle, by those who prepared Sotomayor for the hearings, and by the judge herself.

What's next?

Consider the answer of another woman who's served on the federal bench -- Patricia M. Wald (left) (photo credit), once the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and later a Judge on the International Criminal Tribunal for the former Yugoslavia. In "Questions Sotomayor Still Must Address," a Washington Post op-ed that dealt with a number of issues, Wald wrote this on the question of foreign and international law:

[A] less timid defense of looking at how other countries deal with similar legal problems in a globally dependent world might be in order. We openly extol our institutions and legal theories to the rest of the world; why should we not be open to looking at theirs? ...

Wald concluded:

Sotomayor did a superb job in maneuvering a smooth course toward a deserved seat on the Supreme Court, but, hopefully, she and others will think about some of these enduring problems in the judicial system after they get there.

Justice Antonin Scalia on "so-called torture" and rights, if any, of Guantánamo detainees

Just broadcast on BBC Radio 4's half-hour weekly program, "Law in Action," an interview conducted with U.S. Supreme Court Justice Antonin Scalia during a recent visit to London. (photo credit)
As you can hear here, the interview ranges widely, from originalism to abortion, from the plaintiffs' bar to BMW, from capital punishment to collegiality on the Court. Of particular interest to readers of this blog no doubt will be Scalia's comments regarding detention, interrogation, and -- his words -- "so-called torture." The issue of conduct during interrogation is at the heart of just-announced Gitmo prosecutions, as Elena Baylis' post yesterday demonstrated. And as also posted, the question of what rights the Constitution affords Gitmo detainees is at issue in Boumediene v. Bush, now pending before the Court on which the Justice sits.
Here's the exchange, between the BBC's Clive Coleman and Justice Scalia, on those issues:

BBC: If you look at the U.S. Supreme Court’s actions in relation to Guantánamo Bay, people might say, “Well, it took a very long time for you to come down and do the right thing."
SCALIA: Well, now you’re talking about a different issue, Guantánamo Bay, I’m talking about the United States Constitution. The United States Constitution gives rights to Americans wherever they are, and to foreigners who are in America, who are in the United States. It doesn’t give rights to everybody in the world. I don’t, I don’t have a warrant to go investigating the actions of my country throughout the world, to see whose rights they violated. I mean, there may be some natural law up there in the sky, but the American Constitution doesn’t give rights to these people. And that was the principal issue in Guantánamo, whether indeed Guantánamo Bay wasn’t within the United States, and our courts had no jurisdiction there. Just because you would like it to be so does not make it so, it seems to me. You have to consult the text of the document, and the text of the Constitution does not confer rights on people of the world.
BBC: Tell me about the issue of torture. We know that cruel and unusual punishment is prohibited under the 8th Amendment. Does that mean that the issue is a kind of, if it comes up before the Court, is a no-brainer?
SCALIA: Well, a lot of people think it is, but I find that extraordinary. To begin with, the Constitution refers to cruel and unusual punishment. It is referring to punishment for crime. For example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer, can just commit them to jail until you will answer the question, without any time limit on it, as a means of coercing the witness to answer as the witness should. And I suppose it’s the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face, to find out where he has hidden the bomb that is about to blow up Los Angeles, is prohibited by the Consti- .... because smacking someone in the face would violate the 8th Amendment in the prison context, you can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to the society? I think it is not at all an easy question, to tell you the truth.
BBC: It’s a question that’s been raised by Alan Dershowitz and other people, this idea of ticking-bomb-torture. You know. But it’s predicated on the basis that you’ve got a plane with nuclear weapons, that’s flying toward the White House, you happen to have in your possession – hooray – the person who has the key information that can put everything right, and you stick a needle under his fingernail, you get the answer, and that should be allowed.
SCALIA: And you think it shouldn’t.
BBC: I, I ....
SCALIA: All I’m saying is ...
BBC: ... think about it, it’s a bizarre scenario, because the fact is, it’s very unlikely you’re going to have the one person who can give you that information. And so if you use that as an excuse to permit torture, then perhaps that’s a dangerous thing.
SCALIA: It seems to me, you have to say, as unlikely as that is, it would be absurd to say that you, you, can, I don’t know, something under the fingernails, smack him in the face – it’d be absurd to say that you can’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be, and how severe can the infliction of pain be? I don’t think these are easy questions at all, in either direction. But I certainly know that you can’t come in, smugly and, and, uh, with great self-satisfaction and say, “Oh, it’s torture, and therefore, it’s, it’s, uh, no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be, “Where is this group that we know is plotting some very painful action against the United States? Where are they and what are they currently planning?"
BBC: If you look at countries with a common law tradition, of which we are one, and you are another, but also, lots of other countries around the world, and in the developing world – if they look at decision of the Supreme Court which affirm the death penalty, and which perhaps affirm torture, although that hasn’t happened yet, does that not set a moral tone?
SCALIA: Well, I urge them not to do that. I don’t look to their law. Why should they look to mine? I don’t purport to be prescribing some universal moral law. I am interpreting the meaning of the text of my Constitution, which was adopted at a certain time by my people, and had a meaning to those people at the time. That’s all I’m doing. I’m not charged with, with figuring out the content of the natural law. If you want to look at our decisions, what you could derive from it is what a wonderful Constitution we have. Or, if you don’t like it, you can say what a terrible Constitution we have. But we don’t pretend to be moral, you know, some Western mullahs, who what decide what is right and wrong for the whole world.
BBC: Well, you don’t, perhaps, but many Americans do pride themselves on living in a country that’s the leader of the free world.
SCALIA: We hope to be the leader of the world. But that is set forth not primarily in our judicial opinions, it’s set forth in our laws. To put all of the praise for that, or the blame, if you want to call it blame, on the Supreme Court, is really quite foolish.