The Errors of a Liberal Justice

Supreme Court Justice Stephen Breyer made some in his op-ed in The Wall Street Journal.

In describing the outcome of a case involving a civil suit between a Paraguayan citizen legally present in the US and a fellow Paraguayan citizen illegally present in the US, a case that saw the application of the US’ Alien Tort Statute of 1789, Breyer made this claim and asked these questions:

Since [that case], our courts have had to interpret that ancient statute with growing frequency. Eventually, the Supreme Court had to face an important question: whom does the statute protect today? …how can we reconcile our interpretations of the statute with the need of other countries to rely upon their own methods for compensating human-rights victims…?

The first is simply wrong. Justices—all of our Federal judges—are sworn to uphold the US Constitution and Federal law that is consistent with the Constitution. That means they are sworn to apply the Constitution and the law as they are written, not to interpret either and apply what they think it ought to mean. Full stop.

The answer to the first question should be clear, also: the 14th Amendment and Supreme Court rulings since, for good or ill (see the popular debate over birthright citizenship) means that American law—the Alien Tort Statute, for instance—applies to everyone under American legal jurisdiction: all persons present in the United States. There are no caveats in the statute or in the 14th Amendment or in all of those Supreme Court rulings that say, “Except for….”

How do Justices reconcile the needs of other countries? They must not. They cannot under their oaths of office. They’re sworn to uphold the US Constitution and Federal law. Full stop. Foreign law, foreign imperatives, have no bearing or place in a US court ruling. None. Cases brought before US courts are under US law. Alone.

Breyer then described a foreign college student’s (legally present at a US college) request of his parents in his home country to send him textbooks identical to those available at his college but more cheaply bought at home. Breyer wondered whether US copyright law allowed such a thing.

The answer is straightforward for a Justice honoring his oath of office and applying the law before him as it’s written, without his personal interpretation of what it ought to mean. Were the foreign-bought books properly licensed under our copyright law or not? Or was our copyright law silent on the particular matter, the specific parameters not addressed in the law? If properly licensed, or if the law was silent, then yes, the books were legally procured and delivered. The student was present in the US, and so he was subject to US law. The parents’ purchase is wholly irrelevant. Full stop.

And this:

The court has had to interpret domestic-relations treaties that specify whether to send a child back to a father in a foreign country when the child was brought here by the mother. We have interpreted foreign-investment treaties setting ground rules for arbitration. We have interpreted treaties granting to foreign courts, such as the International Court of Justice, the authority to make decisions limiting the scope of state or federal criminal law. We have faced questions involving Congress’s power to delegate to international bodies….

Wrong, wrong, wrong, and wrong. Justices, Federal judges in general don’t get to interpret US law—they get only to apply it as it is written. With particular reference to “granting to foreign courts…,” the Liberal Justices, especially, must remind themselves that the treaties our government might enter into are subordinate to our Constitution. Delegations of powers to foreign entities must be within the bounds of our Constitution—that is to say, domestic law takes precedence. Full stop.

The American public needs to understand what the “international” part of the Supreme Court’s work actually means….

The Liberal Justice needs, more so, to understand what the “international” part of the Supreme Court’s work actually means. There is no international part of the Supreme Court’s work—the Constitution and the laws made under it are purely domestic. The values that the Founders set forth—democracy, human rights and widespread commerce—were set forth to protect Americans, not foreign nationals in their home countries. The spreading of those values around the world was intended by our Founders to be a political matter—a matter for the people of the United States—not a legal matter.

Full stop.

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