Foreign Law Increasingly Factors in the Work of Supreme Court

Justice Stephen Breyer tells audience at Lisner Auditorium that international engagement is necessary for judges and lawmakers in a global society.

Image of Nina Totenberg and Stephen Breyer
NPR legal affairs correspondent Nina Totenberg and Justice Stephen Breyer. (Courtesy Smithsonian Associates)
October 31, 2016

By Ruth Steinhardt

The U.S. Supreme Court must increasingly engage with foreign law and consider international relations in order for its judgments to be correct and meaningful, Justice Stephen Breyer said Thursday at George Washington University’s Lisner Auditorium.

“The nature of what we consider has changed since I’ve been on the court,” he told National Public Radio legal affairs correspondent Nina Totenberg in a conversation sponsored by the Smithsonian Associates. “A case that required you to consider what happens in the world was fairly rare 20 years ago. It isn’t now.”

The Supreme Court has cited foreign law in its decisions since its inception, Justice Breyer said. However, the practice has become controversial since 9/11—so much so that one congressional representative even suggested it was an impeachable offense.

“They’re worried about it because they’re afraid it will somehow dilute American values,” Justice Breyer said.

But thanks to the global economy, an increasing proportion of cases adjudicated in American courts now have consequences that will ripple across U.S. borders. That means considering points of law from outside any rigidly defined geographic jurisdiction.

“It doesn’t have to do with me, and it doesn’t have to do with the nature of the judge or the judicial philosophy, it has to do with the world we’re in,” Justice Breyer said. “And that has problems that are more than confined within a single nation. If we’re not involved, other countries are going to go ahead and work on them anyway, and we’ll have to live with the results.”

Justice Breyer was the third sitting member of the Supreme Court to visit GW in 2016, following Justices Samuel Alito and Elena Kagan.

He recalled the case of a Thai student at Cornell University who bought foreign editions of a textbook and sold them in the United States at a profit. The publisher sued for copyright infringement and eventually lost.

While considering the case, Justice Breyer and his colleagues realized that their answer would have an impact on $3.2 trillion dollars worth of commerce globally.

“To get an answer to the case, you had to know something about publishers’ practices in copyright law outside of our own boundaries,” he said.

The interdependence of all legal systems in a globalized world is the subject of Justice Breyer’s latest book, “The Court and the World.”

Justice Breyer, a 22-year Supreme Court veteran, is known for his erudition and for his cooperative and pragmatic approach to the law. He displayed some of that diplomacy Thursday, declining to be drawn into a political discussion over the Supreme Court vacancy that has existed since the death of Justice Antonin Scalia in February.

“The court has had even numbers [of justices] at times during his history,” he said, emphasizing that the court is unanimous in most cases, only rarely splitting down the middle.

So could the court function for another four years without filling its ninth seat?

 “I didn’t say that,” Justice Breyer said.

The justice also shared personal anecdotes. He served as junior justice for more than 11 years and was just 29 days away from holding the record for the longest tenure in that position when Samuel Alito joined the court in January 2006.

“I thought of writing when he was confirmed and saying, ‘Would you mind not accepting your nomination?’” he said. “Then I could have gone down in history as the answer to a trivia question.”