The Court & The World: American Law and the New Global Realities

Stephen Breyer “The Court & The World: American Law and the New Global Realities”Alfred A. Knopf, 2015, 284 pp.

Justice Stephen Breyer examines the work of the Supreme Court of the United States with an emphasis on those cases that are seriously impacted by today’s interconnected world and how this interconnectedness makes the Court’s engagement with foreign law and international affairs unavoidable.

My Notes:

Pg. 4:  This book focuses upon the ‘foreign’aspect of the Court’s docket.  It seeks to make known the new challenges imposed by an ever more interdependent world—a world of instant communications and commerce, and shared problems of (for example) security, the environment, health, and trade, all of which ever more pervasively link individuals without regard to national boundaries.  Indeed, at a moment when ordinary citizens may engage in direct transactions internationally for services available only locally before (online bed-and-breakfast rentals, for example), it has become clear that, even in ordinary matters, judicial awareness can no longer stop at the border.

Pg. 17:  During the Civil War President Lincoln suspended or sidestepped constitutional protections of civil liberty in the name of national security.  He also authorized his generals to censor the press, to prevent citizens from speaking vociferously against the war, to arrest suspected supporters of the enemy, and, often, to hold prisoners without trial irrespective of whether ordinary courts where they might have been tried were open a functioning.  In this way, they imprisoned about thirteen thousand citizens during the war.

Pg. 31:  The decision titled Korematsu counts for many as one of the three worst Court decisions in US history, the other two being Dred Scott and Plessy v. Ferguson. 

Korematsu v. United States, (1944) decision concerned the constitutionality of Executive Order 9066, which ordered 120,000 Japanese Americans into internment camps during World War II regardless of citizenship.

Dred Scott v. Sandford, (1857) decision held that African Americans, whether enslaved or free, could not be American citizens and therefore had no standing to sue in federal court, and that the federal government had no power to regulate slavery in the federal territories acquired after the creation of the United States

Plessy v. Ferguson, (1896) decision upheld the constitutionality of state laws requiring racial segregation in public facilities under the doctrine of "separate but equal".

Pg. 42:  During WWII the Court found in the Constitution great lee-way for FDR to take action to protect the nation’s security (e.g. Korematsu decision).  After the war, however, the Court’s approach began to change.  In the Steel Seizure case (1952), decided during the Korean War that was soon to follow, and in the Guantanamo cases, decided during the present ‘War on Terror,’ the Court read the Constitution as denying the President that blank check.  The Court asserted it was now in the business of reviewing the President’s wartime authority, on which it would hereafter enforce limits.  The publishing of the Pentagon papers is a further example of the Court’s more rigid protection of the public’s right to know.

Pg. 96:  Recently we have witnessed an enormous expansion in world commerce.  In the past forty years, world trade has doubled from about 15 percent to more than 30 percent of global economic output, growing (in constant 2005 dollars) from $18.1 trillion to $55.9 trillion.  America’s imports have increased from 6.4 to 16.8 percent and exports from 6.7 to 13.5 percent of GDP.  More than 23 million Americans travel abroad each year.  And major businesses are often made up of networks, connecting divisions located in many different countries, each of which reacts to and plans with others second by second.

Pg. 167:  Our first few presidents would sign one or two treaties per year; today that number has grown by a factor of ten.  The US has entered into at least seven hundred new formal treaties since WWII.  This brings up the question: Does the Supremacy Clause mean what it seems to say—that treaty provisions automatically become the law of the US, binding individual citizens without Congress’s having to enact an implementing statute?  And can a treaty give Congress legislative power that the Constitution otherwise leaves to the states alone?  After more than two hundred years of constitutional history, these and other structural questions related to the treaty power are still with us in many cases unanswered. (P. 197).