As this article by Neil Lewis of the New York Times reflects, Yale law school dean Harold Koh is widely regarded as a leading contender for a Supreme Court appointment if Barack Obama becomes president. What sort of a justice would Harold Koh be?
Let’s begin with Koh’s status as one of the leading proponents of transnationalism, and specifically of judicial transnationalism. Here’s how Koh explains judicial transnationalism:
[T]he Supreme Court has now divided into transnationalist and nationalist factions, which hold sharply divergent attitudes toward transnational law. The transnationalist faction–which includes Justices Breyer, Souter, Stevens, Ginsburg, and at times, Justice Kennedy–tends to follow an approach suggested by Justice Blackmun in the late 1980s: that U.S. courts must look beyond national interest to the “mutual interests of all nations in a smoothly functioning international legal regime” and must “consider if there is a course that furthers, rather than impedes, the development of an ordered international system.” In contrast, another group of Justices, which includes the new Chief Justice John Roberts and Justices Scalia, Thomas, and Alito, seems committed to a more nationalist course.
Generally speaking, the transnationalists tend to emphasize the interdependence between the United States and the rest of the world, while the nationalists tend instead to focus more on preserving American autonomy. The transnationalists believe in and promote the blending of international and domestic law; while nationalists continue to maintain a rigid separation of domestic from foreign law. The transnationalists view domestic courts as having a critical role to play in domesticating international law into U.S. law, while nationalists argue instead that only the political branches can internalize international law. The transnationalists believe that U.S. courts can and should use their interpretive powers to promote the development of a global legal system, while the nationalists tend to claim that U.S. courts should limit their attention to the development of a national system. Finally, the transnationalists urge that the power of the executive branch should be constrained by judicial review and the concept of international comity, while the nationalists tend to believe that federal courts should give extraordinarily broad deference to executive power in foreign affairs.…
With Justices Roberts and Alito now seemingly poised to join the nationalist camp, the transnationalist-nationalist split increasingly hinges on Justice Kennedy’s pivotal vote, with the next Supreme Court appointment after Justice Alito most likely to determine the Court’s future course on these issues.
(Koh, Why Transnational Law Matters, 24 Penn St. Int’l L. Rev. 745, 749-750 (2006) (emphasis added; footnote calls deleted).)
The reality of Koh’s transnationalism is even worse than this passage reveals. Koh believes that it is “appropriate for the Supreme Court to construe our Constitution in light of foreign and international law” in “at least three situations”: (1) “when American legal rules seem to parallel those of other nations”; (2) when (quoting Breyer) “‘foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances’” and we can draw “empirical light” from their experience; and (3) “when a U.S. constitutional concept, by its own terms, implicitly refers to a community standard”. (Koh, International Law as Part of Our Law, 98 Am. J. Int’l. L. 43, 45-46 (2004) (emphasis added).) As the italicized weasel words indicate, in the hands of a living constitutionalist like Koh, foreign and international legal materials will virtually always be available to a transnational judge to help him reach the result he wants to reach.
Koh’s own writings amply prove this point. Koh believes that foreign and international law supports the conclusion that the death penalty always violates the federal Constitution: “The evidence strongly suggests that we do not currently pay decent respect to the opinions of humankind in our administration of the death penalty. For that reason, the death penalty should, in time, be declared in violation of the Eighth Amendment.” (Koh, Paying “Decent Respect” to World Opinion on the Death Penalty, 35 U.C. Davis L. Rev. 1085, 1129 (2002).) Set aside Koh’s risible appeal to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law. (Justice Ginsburg has tried the same trick, as I discussed in this NRO essay). The permissibility of the death penalty is presupposed by numerous constitutional provisions. Anyone who can use foreign and international legal materials to find the death penalty unconstitutional can and will use those materials to reach any conclusion he wants.
Indeed, Koh himself filed an amicus brief in Lawrence v. Texas that argued that international and foreign court decisions compelled the Supreme Court to strike down Texas’s ban on homosexual sodomy. And Koh has also submitted an amicus brief (to the Connecticut supreme court) arguing that comparative precedents from foreign countries require recognition of a constitutional right to same-sex marriage: “the principles of human dignity and autonomy that are the essence of the modern right-protecting democracy demand that civil marriage be available to all couples and that the equality of all citizens triumph over historical attitudes.”
What judicial transnationalism is really all about is depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites. Koh is correct that the next Supreme Court appointments will determine whether the Court continues on its misguided transnationalist course. If Barack Obama is making those appointments, you can be sure that we’re going to be saddled with justices like Koh.