As a follow-up to my post on Justice Breyer’s op-ed, I’ll offer just a couple of comments on Yale law professor John Fabian Witt’s favorable New York Times review of Breyer’s new book, American Law and the New Global Realities. (I haven’t read Breyer’s book and, given the quality of his related op-ed, don’t intend to.)
1. Witt offers a much more intelligible account of what the legal debate over the role of foreign law in interpreting the Constitution is about. But he then asserts that Breyer “contends that events in the world have effectively resolved the foreign law controversy.”
Does Breyer really make such a contention in his book—a contention that is directly at odds with his statement in his op-ed that the “frequent presence of foreign-related issues in the court’s cases has little or nothing to do with” the debate about the role of foreign law in interpreting the Constitution? Or has Witt spun himself into confusion? In any event, I don’t see how it would be possible for “events in the world” to “effectively resolve” the legal question of the role of foreign law in determining the meaning of provisions of the Constitution.
2. Witt states that Justice Sotomayor “denied” in her confirmation testimony that she would rely on foreign law in interpreting the Constitution. Well, yes—as I summarize here, she confusingly denied what she had previously advocated but then, in her written responses to questions, effectively retracted her denial.