Tuesday, May 12, 2009

Justice Souter & transnational law

Since Sosa, individuals have continued to seek to bring human rights abuses to justice through U.S. courts. Justice Souter deserves recognition for allowing the U.S. courts to serve this crucial role in justice.

So concludes our colleague Anupam Chander in "David Souter, Human Rights Justice," a study of the Supreme Court Justice who, as we've posted, is set to retire when this Term ends in late June. In his Balkinization post, Anupam reminds of the contribution that Justice Souter (left) made to the law of human rights by his authorship of Sosa v. Alvarez-Machain (2004), the Court's landmark judgment respecting the Alien Tort Statute. (photo credit)
The post provides a valuable corrective to the conventional account of Souter as an Amero/eccentric.
True, Souter did write the following in his concurrence-in-the-judgment in Washington v. Glucksberg (1997):
The principal enquiry at the moment is into the Dutch experience, and I question whether an independent front-line investigation into the facts of a foreign country's legal administration can be soundly undertaken through American courtroom litigation.

But that passage occurred in a case in which every single Justice agreed that the Due Process Clause of the 14th Amendment to the U.S. Constitution does not guarantee a right to assisted suicide -- a right that, though it existed in the Netherlands, was, in the view of the Court, alien to American tradition.
In the years following Glucksberg, moreover, Souter cast his vote in favor of judgments that enforced constitutional rights found to be both rooted in U.S. tradition and consistent with contemporary practice in countries that share the United States' commitment to fundamental rights. As I've analyzed in this 2006 Georgetown Law Journal article, those judgments drew rebuke from dissenters on account of their mention of foreign and international law and practice. Specifically:
Atkins v. Virginia (2002). Justice John Paul Stevens' opinion for 6 Justices, including Souter, noted, in the course of holding that the 8th Amendment to the U.S. Constitution bars execution of mentally retarded persons, that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." (credit for photo of lethal injection chamber, courtesy of the California-Berkeley Death Penalty Clinic)
Lawrence v. Texas (2003). Justice Anthony M. Kennedy's opinion for 6 Justices, including Souter, discussed European Court of Human Rights jurisprudence and British legal reforms in the course of holding that the 14th Amendment forbids criminal prosecution of same-sex intimacy.
Roper v. Simmons (2005), in which Souter cast an essential 5th vote. Kennedy's opinion for the majority engaged in extended discussion of global practices, plus treaties like the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, in holding that the 8th Amendment prohibits execution of children who were younger than 18 at the time they committed murder.
Also deserving note is Souter's contribution to the Court post-9/11, via jurisprudence that I've analyzed here and here:
► Souter voted with the majority in Rasul v. Bush (2004) and Boumediene v. Bush (2008), which held, first on statutory and then on constitutional grounds, that noncitizens detained at Guantánamo may seek legal recourse in U.S. courts. In Boumediene as in Simmons, Souter's vote was essential to the result. (It was not enough in Padilla v. Rumsfeld (2004), in which a majority turned back a habeas challenge by a U.S.-born "enemy combatant" detainee notwithstanding 4 dissenters' impassioned objection to the incommunicado detention and interrogation to which the detainee had been subjected.)
► Souter voted with the majority in Hamdan v. Rumsfeld (2006), in which Stevens set forth multiple reasons for invalidating the system of military commissions established pursuant to a military order of President George W. Bush. Here too Souter's vote was essential on all grounds that commanded a majority -- including the far-reaching holding that Guantánamo detainees are protected by Common Article 3 of the 1949 Geneva Conventions on the laws of war. Souter further joined parts of the opinion that failed to win Kennedy's also-essential 5th vote -- among those parts, that concluding that procedures set out in the President's plan were illegal because they violated customary international law, as well as that concluding that no tribunal founded on the law of war has jurisdiction to adjudicate the offense with which defendant was charged, conspiracy. On that last point in particular, as a matter of international law, Souter and 3 Justices got it right.
► Souter also got it right in Hamdi v. Rumsfeld (2004). As I've discussed here and elsewhere, Justice Sandra Day O'Connor's opinion for a 4-member plurality authorized the indefinite detention of a U.S.-born "enemy combatant" detainee based both on the brushing-aside of a federal statute, the 1971 Non-Detention Act, and on a flawed understanding of the international law of war. Souter's concurrence/dissent -- joined solely by Justice Ruth Bader Ginsburg, herself recognized for receptivity to foreign context -- correctly construed both bodies of law. The opinion found that the specific federal statute controlled, not a 2001 congressional resolution that made no mention of detention. And it trenchantly demonstrated that executive detention as practiced post-9/11 did not conform -- to the contrary, it contradicted -- the law of war as embodied in custom and in treaties like the 3d Geneva Convention. Had Souter's reasoning prevailed, that would have forced critical reexamination of policy in 2004, and Guantánamo might not still bedevil in 2009.
These too are ways that, to paraphrase the quote at top, Justice Souter has allowed courts in the United States to serve a crucial role in justice.

1 comment:

Anupam Chander said...

Thanks, Diane, for a terrific round up of some major international law cases on which Justice Souter took a position respectful of international law.