Modern International Law V. English Common Law
Jonah, you’re correct that there is a major difference between the Court’s reliance on English common law tradition at the time of the adoption of our constitution in the late 1700s and the sort of importation of modern international legal trends that has become so popular with today’s Supreme Court. One of the more amusing, albeit distressing, opinions that conflates those two concepts was Justice Souter’s opinion last summer in Sosa v. Alvarez-Machain (and I’m not just mentioning that opinion because I was mentioned in fn. 21). At issue was whether the Alien Tort Statute (or Alien Tort Claims Act), a 1789 law that gave federal courts jurisdiction over any civil action by an alien for a tort committed in violation of the law of nations, would support a federal cause of action for the alleged false arrest of a DEA agent’s murderer in Mexico. After correctly reviewing the “law of nations” applicable in 1789 and concluding that private causes of action for such torts were extremely limited to a very narrow category of cases, such as piracy and the infringement of the rights of ambassadors, the Court went on to conclude that more modern equivalents might be allowable, too. But those modern claims, Souter concluded, must “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” As with last week’s Kennedy opinion, I’m still trying to figure out what that means. But it clearly leaves the door open for a much more expanded incorporation of modern international standards than the narrow category of cases recognized by the Court as applicable at the time of passage of the statute. This is simply an example, but the danger is even greater in the area of constitutional interpretation. At least with respect to the ATS, Congress could always change the Court’s prevailing interpretation with a simple majority vote of both Houses and the President’s signature. When the Court looks to modern international trends in interpreting the constitution, we have but two choices: Amend the constitution or amend the Court’s makeup. Because the latter is much easier than the former, the politicization of judicial nominations will only increase in the immediate term.