Trump’s Pick to Replace Ginsburg Could Make the Supreme Court ‘America First’

The late Ginsburg championed international law. Amy Coney Barrett has argued that what the world thinks is at best superfluous.

Mementos at a makeshift memorial for Supreme Court Justice Ruth Bader Ginsburg in front of the U.S. Supreme Court in Washington, DC, on Sept. 19.
Mementos at a makeshift memorial for Supreme Court Justice Ruth Bader Ginsburg in front of the U.S. Supreme Court in Washington, DC, on Sept. 19. Samuel Corum/Getty Images

You can’t accuse him of dithering. It took just eight days for U.S. President Donald Trump to nominate Seventh Circuit Judge Amy Coney Barrett to take the still-warm seat of the late justice Ruth Bader Ginsburg on the Supreme Court. If the spectacle of a nomination battle being fought out during an election season proves one thing, it’s that the court is political.

In American legal politics, one issue trumps all others: abortion. Little surprise, then, that Barrett’s likely position on the 1973 case of Roe v Wade that established a woman’s right to an abortion was being analyzed even before she was nominated. But abortion is only one of many pressing issues that ultimately end up before the court. Another perennial controversy is the status of “customary” international law in U.S. jurisprudence. For the people around the world who often find themselves subject to U.S. law while having no say in its formulation, the way the Supreme Court treats international law can be a matter of life, death, and billions of dollars.

When most people think of international law, they have in mind the international treaties that countries sign with other nations. But in the United States, international treaties ratified by Congress have the force of domestic law, meaning that statutory international law becomes U.S. law. Up for grabs, however, is the unwritten common law of nations—the legal norms and standards widely practiced around the world but not laid down in binding treaties. Often called “customary international law,” its meaning is for the courts to interpret—or ignore.
Ginsburg was a champion of customary international law and a proponent of citing international precedents in U.S. legal judgments.

Ginsburg was a champion of customary international law and a proponent of citing international precedents in U.S. legal judgments. That made her, along with fellow justices Sonia Sotomayor and Stephen Breyer, one of the court’s three so-called transnationalists. Opposing them were the four strict constructionists, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, who tend to consider U.S. law impervious to global opinion. The remaining two justices, Elena Kagan and Chief Justice John Roberts, are widely viewed as case-by-case pragmatists.

At the beginning of her career, Barrett clerked for former Justice Antonin Scalia, who strictly rejected any relevance of foreign law or opinion to U.S. jurisprudence. Although clerks do not necessarily adopt the views of their mentors, Barrett’s views seem to be broadly aligned with Scalia’s judicial thinking. Serving for less than three years as an appeals court judge in Chicago, she has had little opportunity to issue judgments on international law. But she has touched on the relevance of international law for U.S. jurisprudence in her academic writing as a law professor at the University of Notre Dame. In at least one of those law review articles, she argues that for a judge to consider customary international law is at best superfluous, and at worst a dereliction of duty, since if international law accords with the will of Congress it is unnecessary to take it into account, while if it contradicts the will of Congress, it is the will of Congress that must prevail.

Ginsburg, by contrast, thought that the Supreme Court should actively engage with international legal opinion and international thought about the scope of the common law of nations, and that the United States had as much to learn as it had to teach when it came to understanding the law. In a 2010 speech to the International Academy of Comparative Law, she reasoned that if “U.S. experience and decisions may be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so too can we learn from others now engaged in measuring ordinary laws and executive actions against fundamental instruments of government and charters securing basic rights.”

One area where Ginsburg thought it particularly important to take account of the views of what she termed “humankind” was capital punishment. She was a staunch opponent of the death penalty, and although she never argued that it was unconstitutional, she did refer to international opinion in arguing that it violated international norms. While her views on capital punishment were deeply humane, her references to humankind were inevitably selective. After all, there is hardly a global consensus on the death penalty. The majority of countries don’t use it, but most of the world’s population live in countries that do. The world’s five most populous countries all have the death penalty: China, India, the United States, Indonesia, and Pakistan.

A quick look at the death penalty map shows that the United States is not so much an outlier among democratic countries or even an outlier among rich countries in maintaining the death penalty, but an outlier among European-heritage countries. Ginsburg urged that the “U.S. judicial system will be the poorer … if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own,” citing Canada, South Africa, Germany, and the European Court of Human Rights. But arguably it is either cherry-picking or plain Eurocentrism not to seek to learn from Japan, Taiwan, and India as well.
International law takes a dim view of the extraterritorial reach of any one country, no matter how powerful.

The weakness of Ginsburg’s approach to international opinion—and the strength of Barrett’s—arises from the fact that the world is a diverse place, and what was once the law of nations was really only ever the law of Europe. Whereas Ginsburg stressed the commitment of America’s founding generation to European legal norms, Barrett stresses the fact that they only did so until the United States’ own statute laws began to accumulate. For Barrett, international opinion is useful for understanding unwritten common law practices, but it is irrelevant to the interpretation of express statute and constitutional law.

America’s engagement with customary international law isn’t all about respect for the world’s opinions; it cuts both ways. For example, the 1789 Alien Tort Claims Act, also known as Alien Tort Statute, has in recent decades become an invaluable tool for human rights activists seeking restitution in U.S. courts for atrocities committed by foreigners in foreign countries. The Supreme Court also decides cases relating to the global scope of U.S. government surveillance and the power of the president to order targeted killings. And of course we just witnessed how a U.S. federal judge could intervene in foreign policy by halting the ban on TikTok. All of these potentially violate customary international law, which most interpreters believe takes a dim view of the extraterritorial reach of the laws of any one country, no matter how powerful.

And in all these examples, it is unclear whether (and which) international actors would prefer a transnationalist jurist like Ginsburg or a strict constructionist like Barrett. The only certain thing is that it’s complicated, and no one can be sure how any Supreme Court justice will vote on any particular case. Barrett is no exception. Her appeals court tenure has been short, and (notwithstanding White House claims to the contrary) her 15-year academic career was unremarkable. Court watchers who want to understand her legal reasoning will just have to watch—and wait. And when it comes to the Supreme Court’s treatment of customary international law, the world will have to wait with them.

Correction, Sept. 30, 2020: This article originally stated that Amy Coney Barrett clerked for Samuel Alito. She clerked for Antonin Scalia.

Salvatore Babones is an adjunct scholar at the Centre for Independent Studies in Sydney and an associate professor at the University of Sydney. Twitter: @sbabones

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