Supreme Court Justice visits SIPA to reflect on ‘The Court and The World’

“The best way to protect our American values is to know what’s going on beyond our shores,” said Associate Justice Stephen Breyer of the United States Supreme Court, summarizing the thesis of his new book The Court and the World: American Law and the New Global Realities.

Breyer visited Columbia’s Italian Academy on April 14 to deliver SIPA’s annual Gabriel Silver Memorial Lecture. Introducing the jurist, SIPA Dean Merit Janow and Columbia University President Lee Bollinger reflected upon the importance of the book topic in today’s rapidly globalizing and urbanizing world.

Breyer’s book is “an important look at a challenging and crucial set of questions: how the court in so many areas of law has come to consider and interact with the laws of the rest of the world,” said Janow.

“As there were more and more global issues, and there was a global communications technology, the Internet, that made global communications possible really instantaneously for the first time in human history, there was now a need to think of free speech and free press on some kind of global scale,” Bollinger added. “Would there be international norms that we could evolve over time, and how should we interpret the First Amendment and the Constitution in light of this?”

In a conversation with Janow and Bollinger, Breyer suggested that the societal changes he identifies in his book have “nothing to do with the philosophy of judges,” but rather “changes in the nature of the world.” He said that while he does not have an answer to what words like globalization or interdependence mean, he does have the ability to reflect on how such concepts interact with the cases on the Supreme Court’s docket.

An example of this is how the role of the Court in checking executive power on matters of national security has shifted over time. He brought up the example of Korematsu v. United States, the Supreme Court decision that allowed the U.S. government to intern Japanese-Americans during World War II. While we might consider the decision objectionable in hindsight, he said, at the time the Court essentially argued that it didn’t have the context or the authority to undermine the president during wartime.

Breyer then cited a 2004 decision by Justice Sandra Day O’Connor that countered the logic behind Korematsu by noting that the Constitution does not provide a blank check to the President, even in wartime. Breyer said that many people were upset about the idea of the Court overruling the executive branch on a national security matter, but it has become important to balance national security “without destroying civil liberties.” With this in mind, it becomes even more important to turn to other countries to understand how they strike this balance, he said.

Another example is in the realm of commerce, where comity with the laws of other countries becomes even more essential. Breyer mentioned the 2013 decision in Kirtsaeng v. John Wiley & Sons, Inc., a case about copyright law that would affect $2.3 trillion worth of global commerce.

“I have to know about what’s going on in other parts of the world,” Breyer said of the Kirsaeng scenario, which dealt with the right to import to the United States copyrighted works that had been lawfully printed overseas. “That’s part of my job.”

It would be impossible to make such decisions without considering the opinions of other nations as expressed in Supreme Court briefs, he added.

In this respect, the legal concept of comity—the respect of courts in different jurisdictions, states, or countries for each other’s laws—has evolved over time.

“It’s not simply ‘you stay out of it, it’s theirs,’” Breyer said. “It’s how do you interpret an American statute given what other people are doing, so you can harmonize and further the similar advance of similar areas of law in many different countries.”

In order to accomplish this, he said, it’s important for law schools like Columbia to train young lawyers to look to global case law, and not just American case law, for legal precedent.

“You can’t teach the law of the world. Nobody knows the law of the world,” Breyer said. “But you could sometimes in a contract case, bring in something by way of comparison, so that the law of the world doesn’t just end up in a course called comparative law or international law.”

He said “bits or pieces” of non-U.S. law could appropriately be taught in more general law classes. Over time, he said, it would help judges improve on their own work, Breyer said, thus further enriching our legal discourse.

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