Supreme Court Justice Breyer calls for a more global ‘cast of mind’ in U.S. courts

It is no longer enough for U.S. judges to understand our own nation’s laws and judicial processes, said Supreme Court Justice Stephen Breyer on Feb. 17 at the Yale Law School.

“There has been a remarkable change in the number of cases that require judges to know what goes on beyond our own shores in order to make a judgment,” he told the audience at the Brennan Center’s annual Jorde Symposium. Joining Breyer at the event were Aharon Barak, professor of law at the Interdisciplinary Center in Herzliya and former president of the Supreme Court of Israel, and Curtis Bradley, the William Van Alstyne Professor of Law and professor of public policy studies at Duke University.

The theme of this year’s symposium was inspired by Breyer’s most recent book, “The Court and the World: American Law and the New Global Realities.” While originally scheduled to take place in the Law School’s Rm. 127, the event was moved to the auditorium to accommodate the number of people who showed up for the symposium. Even in the larger venue, it was standing-room-only.

Breyer, an animated speaker who likes to sprinkle his talks with humor, began his presentation on a solemn note, asking the audience members to observe a few moments of silence in honor of Supreme Court Justice Antonin Scalia, who died unexpectedly on Feb. 13.  Breyer described his former colleague as a “decent man” who was the “life force of the court.”

Noting that he was thankful for the many Law School scholars who helped him do research for “The Court and the World,” Breyer reminded the assembled that it was not his first book. That first book, about administrative law and regulatory policy, could still be purchased on Amazon.com “for a penny,” he quipped.

His newest book was inspired by the ever-increasing ways in which globalization is affecting the Supreme Court and other judicial bodies, he said.

Issues of national security and civil liberties have come before the Supreme Court many times over the centuries, he said, although all too often “in times of war, the laws fall silent.” For example, during World War II, the court backed President Roosevelt’s decision to create detainment camps for Japanese American citizens — even though the justices at the time knew that reports of subversive acts by that group were untrue.

In modern times, the Supreme Court ruled in favor of a detainee at Guantanamo Bay who argued that he was denied due process under U.S. law — a decision that was not received well by many in government and the military. Nevertheless, said Breyer, quoting his former colleague Justice Sandra Day O’Connor: “The Constitution does not write a blank check to presidents in time of war.”

“The justices are there to protect basic human values,” he added.

When questions of national security vs. civil rights arise, it is no longer sufficient for government agents to say the reason they need to do something is “classified,” said Breyer. “You need to know how to find out if something is necessary or if there are other ways to do it.” In that regard, “it is helpful to find out what other nations are doing,” he added.

Copyright protection is another borders-spanning issue that comes before the court, said Breyer, noting that he received a stack of briefs several feet high submitted by foreign courts in a copyright case a few years back. He was startled that there was such international interest in the case, he said, until he learned that the court’s decision could eventually affect $3.2 trillion of products worldwide. “That’s a lot of money, even today,” he joked.

U.S. judges also need to look beyond the nation’s shores when considering suits filed in U.S. courts by foreign nationals who are suing foreign companies and when assessing how treaties with other countries affect the U.S. legal system. “And marriage is more and more becoming a matter that crosses national boundaries,” he said.

These issues require a “different cast of mind,” said Breyer, and the nation’s law schools should internationalize “many courses that have traditionally been domestic in their focus.”

While some critics may argue that U.S. judges should focus solely on “American values” when making their decisions, Breyer argued that the best way to preserve those values is by looking abroad “to see what’s going on so people can see there are many ways to solve these problems.”