Tea leaves on Kagan & international law

How will President Barack Obama's nominee to the U.S. Supreme Court treat issues of foreign, international, comparative, or transnational law?
As with many other areas respecting the judicial potential of Elena Kagan (left) (prior posts), this one is tabula rasa.
Kagan, who seems likely to succeed in her bid to replace retiring Justice John Paul Stevens (at right in bottom photo), has among the sparsest written record of public writings of any nominee in decades.
Consideration of the question of Kagan and intlaw thus requires resort to reading tea leaves.

Leaf No. 1: Marshall Clerk
► Among the judgments issued during Kagan's OT '87 clerkship for Justice Thurgood Marshall was Thompson v. Oklahoma (1988), in which international context played a role in the Court's holding that execution of a 15 year old would violate the Cruel and Unusual Punishments Clause of the 8th Amendment to the U.S. Constitution. The controlling plurality opinion stated (footnotes omitted):

The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo American heritage, and by the leading members of the Western European community. Thus, the American Bar Association and the American Law Institute have formally expressed their opposition to the death penalty for juveniles. Although the death penalty has not been entirely abolished in the United Kingdom or New Zealand (it has been abolished in Australia, except in the State of New South Wales, where it is available for treason and piracy), in neither of those countries may a juvenile be executed. The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union.

As I've written here, that passage, written by Justice Stevens, set the stage for the debate over consultation of foreign context, one that continues to this day. It's impossible to find out from my Pacific Coast perch what, if any, role Kagan, 1 of 3 TM clerks that year, played in Justice Marshall's decision to join Stevens' opinion.
Kagan appears never herself to have written about the advisability vel non of consultation -- a practice that, as posted, then-Judge Sonia Sotomayor (far right) was constrained to rebuke in her quest last year to become a Justice. But Kagan surely knows of the debate. Indeed, though she offered no thoughts of her own on the matter, Kagan invited Justice Ruth Bader Ginsburg (near right) to rise to the defense of the practice during an interview published as "Remarks Commemorating Celebration 55: The Women's Leadership Summit," 32 Harvard Journal of Law & Gender 233, 237 (2009).
► The term "foreign experiences" does surface in "For Justice Marshall," 71 Texas Law Review 1125 (1993), Kagan's tribute to her then-just-departed Boss. She recalled the penchant Marshall (below left) had for telling stories -- not only of his work as a civil rights and criminal defense lawyer in America, but also of his ventures overseas. (As posted, the best account of the latter is by IntLawGrrls guest/alumna Mary L. Dudziak.) Kagan wrote:

When Justice Marshall was investigating racial discrimination in the military in Korea, a soldier demanded that he provide a password; the hulking (and, of course, black) Marshall looked down at the soldier and asked, 'Do you really think I'm North Korean?' And when assisting in the drafting of the Kenyan Constitution, the Justice was introduced to Prince Philip. 'Do you care to hear my opinion of lawyers?' Prince Philip asked in posh British tones, mimicked to great comic effect by Justice Marshall. 'Only,' Justice Marshall replied -- before the two discovered mutual ground in a taste for bourbon -- 'if you care to hear my opinion of princes.'

Here's the lesson that Kagan said she drew from such stories:

They were a way of showing us foreign experiences and worlds, and in doing so, of reorienting our perspectives on even what had seemed most familiar. And they served another function as well: they reminded us, as Justice Marshall thought all lawyers (and certainly all judges) should be reminded, that behind law there are stories -- stories of people's lives as shaped by law, stories of people's lives as might be changed by law.

Leaf No. 2: Legal Scholar
► No reference to foreign, comparative, transnational, or international law/context appears in any of the half-dozen or so articles that Kagan authored or coauthored while a professor at Chicago and Harvard.

Leaf No. 3: Harvard Law Dean
► Among the most-remarked features of Kagan's tenure as Harvard Law's 1st woman dean was her recruitment of numerous conservatives, among them Jack L. Goldsmith, a Bush Administration lawyer post-9/11 and author of an Office of Legal Counsel memorandum ably criticized by José E. Alvarez in "Torturing the Law" and Leila Nadya Sadat in "Ghost Prisoners and Black Sites: Extraordinary Rendition Under International Law," at pages 175 and 309, respectively, of 37 Case Western Reserve Journal of International Law (2006).
► Kagan also oversaw the introduction into the mandatory 1L curriculum of a class "that looks at law in a comparative or international framework," an innovation she discussed in "The Harvard Law School Revisited," 114 Green Bag 2d 475 (2008):

The courses in comparative law are opening up new questions and possibilities, showing choices made by different societies and challenges that arise from globalization, while also helping every student to locate American law in the larger map of laws, politics, and histories across the world.

Leaf No. 4: Solicitor General
► Kagan's 14-month stint as the United States' top Supreme Court lawyer has been distinguished mostly by the fact that she's the 1st woman in the post. (It's her 2d turn in the Executive Branch; not much seems to have been written yet about her couple years in the Clinton White House.) Kagan's 1st oral argument before the Court came last September in Citizens United v. FEC; she failed to persuade a majority to sustain a federal statute regulating corporate spending on elections.

Here's a sampling on cases with a transnational angle:

► In Samantar v. Yousuf (a pending case on which we've posted here, here, and here), Kagan, along with State Department Legal Adviser Harold Hongju Koh, signed an amicus brief on behalf of Alien Tort Statute plaintiffs, who're seeking affirmance of a lower-court ruling denying sovereign immunity to a former Somali official.

► During her confirmation hearings and since, Kagan's SG office has called for robust executive power in the campaign against terrorism (and see here). That fact should not surprise anyone who remembers the Clinton DOJ.

In short, a mixed bag. Perhaps the best answer to the question posed at the top is one implicit in a speech by Justice Stevens, whose own approach to transnational matters evolved, as I've written here. Stevens' speech, published at 74 Fordham Law Review 1561 (2006), was delivered in 2005, almost immediately after he'd administered the oath of office to Chief Justice John G. Roberts, Jr. (above).

Applied to present context, the underlying question is this:

What will Justice Kagan be open to learning on the job?

Such on-the-job learning, Stevens said, is

'essential to the process of judging.'

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.)

On October 20

On this day in ...

... 1952, Time magazine reported on what it called "The Bloody Mau Mau Revolt," the assassination by the anti-British Mau Mau rebels of a Kikuyu chief, "a prominent British loyalist from their own tribe." Consequently, a state of emergency was declared in what was then a British colony; it would remain in place nearly 8 years. According to Time,

British troops were brought in. More than 100,000 Africans were put into detention camps. The killings continued, and news reports about the Mau Mau's bloody massacres of white settlers living in the highlands of central Kenya horrified the world. In fact, only 32 Europeans died, while almost 2,000 Kikuyu loyal to the British crown were murdered before the colonial government regained control.

The rebel movement sparked calls against colonialism in Africa. Aided in part by Thurgood Marshall, Justice of the U.S. Supreme Court, Kenya would gain independence its independence in 1963.

(Prior October 20 posts are here and here.)

Martha Minow, new Harvard Law Dean

Heartfelt congratulations to our colleague Martha Minow, just named the new Dean of Harvard Law School.
She is, as is evident from prior IntLawGrrls posts, the newest addition to the IntLawDean ranks.

Harvard's official announcement rightly describes Martha (right), the Jeremiah Smith Jr. Professor of Law, as

a distinguished legal scholar with interests that range from international human rights to equality and inequality, from religion and pluralism to managing mass tort litigation, from family law and education law to the privatization of military, schooling, and other governmental activities.

(photo credit)

Her book Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (1998) remains a landmark in the literature of transitional justice. Published just years after the end of the Cold War and the beginning of international human rights enforcement, it's a brilliant study of truth commissions, war crimes trials, and reparations bids in contexts as varied as Latin America and South Africa, Nuremberg and Bosnia. It's been followed by other books also invaluable to to all who care about human rights in this new century, among them the just-published Government by Contract: Outsourcing and American Democracy (2009), co-authored with her Harvard colleague Jody Freeman.

A member of the Independent International Commission on Kosovo, Martha has played a lead role in “Imagine Coexistence,” a project of the U.N. High Commissioner for Refugees that works for peaceful coexistence after violent ethnic conflict.

She is also a strong proponent of "Bringing Human Rights Home," not coincidentally the subject of a 2008 Harvard Human Rights Journal symposium in which IntLawGrrl Stephanie Farrior and I had the honor of taking part with her. She's co-directed studies of U.S. responses to recent immigrants, and of public school access for disabled children, and has served on many human rights-related boards.

Martha joined Harvard's law faculty in 1981 after having served as a law clerk to Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit and to U.S. Supreme Court Justice Thurgood Marshall. She holds a bachelor's degree from the University of Michigan,a master’s in education from the Harvard Graduate School of Education, and a law degree from Yale.

As Harvard President Drew Gilpin Faust said of Martha in announcing the appointment:

'She’s a scholar of remarkable intelligence, imagination, and scope, with a passion for legal education and a deep sense of how the law can serve essential public purposes.'

On April 7

On this day in ...
... 1803, Flore-Celestine-Therèse-Henriette Tristan-Moscoso was born in Paris, France. A member of the working-class, she worked in a print shop as a girl. Eventually she became active in workers' rights causes, the the death-penalty abolition movement, and in the feminist movement, arguing for divorce and against gender constraints." Writing under the pen name Flora Tristan (left), she produced a variety of works -- "travel memoirs, a utopian novel, and assorted social commentary." Today the woman who died at age 41 (4 years before her daughter gave birth to Tristan's grandson, who would become the renowned painter Paul Gauguin) is

recognized as a thinker whose works bridged the gap between 'utopian' and 'scientific' socialism and helped lay the foundations for modern feminist theory.

... 1969 (40 years ago today), in Stanley v. Georgia, the Supreme Court held unanimously that the 1st Amendment to the U.S. Constitution forbids a state from subjecting a person who possesses of obscene materials within the home to criminal prosecution and punishment. The Opinion of the Court by Justice Thurgood Marshall contained this oft-quoted passage:

Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.

The ruling did not disturb precedent that permitted the distribution or sale of obscenity -- leaving all to puzzle by what legal path such materials might find their way into anyone's home.

(Prior April 7 posts are here and here.)

...and Elena Kagan's to be the new SG

More kudos: President Elect-Barack Obama has just nominated Harvard Law Dean Elena Kagan to be the lead government lawyer before the U.S. Supreme Court.
Kagan, who would be the 1st woman Solicitor General of the United States, was a law clerk to Justice Thurgood Marshall, himself the 1st African-American person to serve as SG.
IntLawGrrls mentioned Kagan this summer, in a post on the annual meeting of the American Constitution Society that also mentioned our guest alumna Dawn Johnsen, who, as described above, has just been named to head the Office of Legal Counsel. In that post we wrote:

Of some concern, though, were comments at a Friday morning panel entitled 'What's At Stake: Law and Justice Policies in a New Administration.' There participants shrank from a suggestion by the moderator, Harvard Law Dean Elena Kagan, that criminal investigation might receive even fleeting contemplation by the new President, who will have the task of making an accounting of official abuse post-9/11. ...

Among her 1st tasks upon confirmation relates to the post-9/11 legal landscape: it is, as detailed in this New York Times article , to prepare and file the government's briefs in the case of Ali Saleh Kahlah al-Marri, the only person designated an "enemy combatant" who is still in Stateside detention.

Heartfelt congratulations, Elena!

You go, 'Grrl!

Kudos to IntLawGrrls' own Marjorie Florestal (left), whose smiling face jumped out at me on reading this month's edition of the ABA Journal.
Why?
Well, for her essay titled, simply, "Why?"
The Journal 's Board of Editors selected Marjorie's essay over nearly 200 others that sought to answer this question: "Why do you believe the legal profession is the greatest profession in the world?"
To answer, Marjorie draws readers back to her childhood, to a hot day in the tiny kitchen of her apartment in New York City:

'Why?' my father finally asked.
Family legend has it that I responded, 'Because I want to be the international Thurgood Marshall.'

Marjorie concludes -- here's a hint without a giveaway of the ending -- by offering a "why" to that "why." Full essay's here.
In addition to having her essay published, Marjorie won a $5,000 prize in the essay contest, which, as the Journal explains, is "supported by a trust established in the 1930s by the late Judge Erskine M. Ross of Los Angeles" (right).
Heartfelt congratulations!

On July 2

On this day in ...
... 1908 (100 years ago today), Thurgood Marshall was born in Baltimore, Maryland. After earning his J.D. from Howard University Law School in Washington, D.C., began practicing as counsel for the Baltimore branch of the National Association for the Advancement of Colored People; eventually he would join the NAACP's national staff and become its Chief Legal Officer. His achievements included successful pursuit of litigation that led to Supreme Court victory in Brown v. Board of Education (1954); service as a federal appellate judge; service as Solicitor General of the United States; and service as an Associate Justice of the Supreme Court. He was the 1st African-American to hold the latter 2 posts. Marshall died at age 84 in 193. His contributions to the Constitution of Kenya are profiled in Exporting American Dreams: Thurgood Marshall's African Journey (above left), the new book by our colleague Mary Dudziak (right).
... 1782, Geneva surrendered to a coalition of French, Sardinian, and Bernese troops, bringing to an end the "Geneva Revolution" that had been inspired by the city's native philosopher, Jean-Jacques Rousseau, who'd died on the same day 4 years earlier. Works of Rousseau like Du contrat social/The Social Contract (1762) soon would influence revolutions in America and France.

Any "cooler heads" in Kenya?

A week ago Kenya's Justice Minister, Martha Karua (right), predicted the political crisis that's roiled her country in the weeks following a disputed Presidential election would settle down. Karua told the BBC she expected that "cooler heads" would prevail: "We expect that eventually everybody will come to their senses, realise that we've got to learn to live with each other."
Sadly, her prediction's proved premature.
Here's the latest news from Nairobi: "Nine people were hacked or burned to death in new violence linked to Kenya's political crisis on Tuesday, as former UN secretary general Kofi Annan arrived to revive mediation efforts."

Since violence erupted in the wake of the December 27, 2007, balloting, more than 700 Kenyans have been killed. Another 250,000 have fled their homes.

Opposition leader Raila Odinga's called it a "constitutional crisis," a contention that our colleague Mary Dudziak, author of a forthcoming book on Thurgood Marshall's role in drafting the Kenya Constitution, has analyzed here.

Odinga and his rival, incumbent President Mwai Kibaki, came together in the same room last week for the 1st time since the election, to vote on who'd become Speaker of Parliament. Though Odinga's Orange Democratic Movement won, the vote was close, and the victory did not stop the turmoil.

Indeed, yesterday an Odinga spokesman said the movement had "sent a formal complaint to the International Criminal Court in The Hague notifying the panel about the charges that authorities committed crimes against humanity during the crackdown on demonstrations" -- a charge the government met by saying it'd be complaining to the ICC that the oppostion was "involved in planning 'mass genocide.'"
Annan, a 2001 Nobel Peace laureate (right), was to have arrived in Nairobi to launch mediation talks a week ago but delayed on account of flu. Now that he's there, he's got his work cut out for him.

As for Dr. King & Judge Marshall ...

... see Mary L. Dudziak's excellent post on Martin Luther King, Jr. and Thurgood Marshall here.

On December 12, ...

... 1982 (25 years ago today), 30,000 women from across Britain joined hands in a peace protest outside Greenham Common (left), encircling the military base that lay 45 miles west of London. The event was part of a years-long Women's Peace Camp, described here, outside the base.
... 1963, Kenya gained independence from Britain. A New York Times reporter wrote: "With Britain's Union Jack replaced by the black, red and green flag of the new state[,] political power in Britain's last East African colonial holding slipped from the grasp of its 55,759 whites and was taken up by its 8,365,942 Africans." Jomo Kenyatta became the country's 1st Prime Minister. For a window onto this moment in history, check out the paper entitled "Exporting American Dreams: Thurgood Marshall and the Constitution of Kenya," by our colleague Mary L. Dudziak, and keep your eyes peeled for her forthcoming book on the same subject.

On August 30, ...

.... 2003, after "'nonstop'" negotiations, the General Council of the World Trade Organization agreed to let developing countries to import generic drugs without violating patent rights with regard to those drugs. Many lauded the accord, given the mouthful-of-a-title "Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health." But others, among them Ellen 't Hoen, coordinator of a medicine-access campaign for Doctors Without Borders/Médecins Sans Frontières, said that the agreement "offers little comfort for poor patients," for the reason that "[g]lobal patent rules will continue to drive up the price of medicines."
... 1967 (40 years ago today), "[a]fter lengthy and often very heated debate the Senate confirmed the appointment" of Thurgood Marshall to the U.S. Supreme Court. He became the 1st African-American person to serve on the country's highest court. (Mightn't he have been the 1st person of African ancestry to serve on any supreme court outside of Africa?) Marshall (left), who'd appeared frequently before the Court to argue landmark civil rights cases and then as Solicitor General, served as an Associate Justice for 23 years. He died at age 86 in 1993. (portrait by Simmie L. Knox from the Collection of the Supreme Court of the United States)

Way-Faring Justice

Notable at the end of a U.S. Supreme Court Term notably lacking in transnational references is Justice John Paul Stevens' reach across borders of time as well as place. (For upcoming transnational cases, see below.)
Yesterday's plurality opinion invalidating programs designed to maintain racially integrated public schools relied on Brown v. Board of Education (II), the 1955 judgment that ordered desegregation with "all deliberate speed." This reference by Chief Justice John G. Roberts Jr. (above right) rankled Stevens (above left), whose involvement with the Court and desegregation, as I wrote here, well predates Brown. In the 1948 case of Ada Sipuel Fisher (right), who'd sought admission to the University of Oklahoma Law School, a typescript memorandum by then-law clerk Stevens advised Justice Wiley B. Rutledge:

I would think it possible to take judicial notice of the fact that (a) a law school for one student cannot be equal, even if you accept the equal but separate doctrine, and (b) the doctrine of segregation is itself a violationof the Constitutional requirement.

Nearly 6 decades later Stevens, who'd gone on to serve as a judicial brother to Sipuel lawyer Thurgood Marshall (left), found "a cruel irony" in Roberts' invocation of Brown II. Elaborating, Stevens' wrote that Roberts' opinion concludes with the sentence

"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin." This sentence reminds me of Anatole France's observation: "The majestic equality of the law, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court's most important decisions. Compare ante ("history will be heard"), with Brewer v. Quarterman (2007) (Roberts, C.J., dissenting) ("It is a familiar adage that history is written by the victors").

The transnational reference is to Le Lys Rouge, or The Red Lily, an 1897 novel by Anatole France (left). The renowned French author used his 1921 Nobel Prize speech to condemn the Versailles agreement as "a peace treaty that is not a treaty of peace but a continuation of war" on account of which, if not amended, "Europe will perish." The sentence that Stevens invoked yesterday comes from a passage likewise laden with social commentary. In a chapter entitled "Madame Has Her Way," the character Choulette delivers a bitter critique of what he sees as France's Revolutionary legacy:

"... We are warlike in France, and we are citizens. Another reason to be proud, this being a citizen! For the poor it consists in sustaining and preserving the wealthy in their power and their laziness. The poor must work for this, in presence of the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under the bridges, from begging in the streets, and from stealing bread. That is one of the good effects of the Revolution. As this Revolution was made by fools and idiots for the benefit of those who acquired national lands, and resulted in nothing but making the fortune of crafty peasants and financiering bourgeois, the Revolution only made stronger, under the pretence of making all men equal, the empire of wealth. It has betrayed France into the hands of the men of wealth. ..."

Choulette's traveling companion, Countess Martin, thinks his ideas "a little absurd," the novel continues. "She did not think that the past had ever been better than the present." And so she replies with resignation:

"I believe, Monsieur Choulette, that men were always as they are to-day, selfish, avaricious, and pitiless. I believe that laws and manners were always harsh and cruel to the unfortunate."

Stevens' dissent underscores the continuing relevance of this 110-year-old debate over formal versus substantive equality.

On May 17, ...

...1954, in Bolling v. Sharpe and Brown v. Board of Education, the U.S. Supreme Court ruled unanimously that the Constitution's 5th and 14th Amendments forbid segregation of public schoolchildren on account of their racial heritage. NAACP lawyer Thurgood Marshall, who'd argued 1 of the consolidated cases, predicted to the New York Times "that the people of the South, the region most heavily affected, were law-abiding and would not 'resist the Supreme Court.'" Although some schools, like this one in Washington, D.C., did integrate quickly, Marshall's prediction proved overly optimistic. (1955 photo by Thomas J. O'Halloran of Washington's Barnard School courtesy of Library of Congress.)
...2005, U.S. Army Spc. Sabrina Harman, who appeared on some of the photographs taken of detainee abuse at Iraq's Abu Ghraib prison, was sentenced to 6 months in prison the day after a she was found guilty on 6 of 7 charges. She apologized at her sentencing hearing: "'My actions potentially caused an increased hatred and insurgency towards the United States, putting soldiers and civilians at greater risk. ... I take full responsibility for my actions.' "