The Supreme Court Goes Global

The end of the Supreme Court's term last week hinted at a quiet revolution taking place in American law. In particular, two of the Court's most significant civil rights decisions favorably cited international and foreign law. This development surprised many Court watchers who generally regard the justices as close allies of President Bush.

At home and abroad, the Bush Administration has been vigorously undermining efforts to link U.S. and international law. Two of many recent examples include the White House's efforts to coerce Belgium to soften its universal jurisdiction laws and the Administration's challenge to cases brought under the Alien Tort Claims Act, an obscure U.S. law that allows foreigners to sue American companies linked to human rights abuses in other nations.

Yet, at the same time, some American lawyers are fighting back. First, they are starting to use international law claims in their domestic legal arguments. For example, the Court recently considered an amicus brief filed by several immigrant advocacy organizations describing relevant international and foreign law surrounding arbitrary detention.

Second, these lawyers are starting to take their domestic cases to international and regional tribunals. For example, they are bringing death penalty claims to the International Court of Justice and labor rights cases to the Inter-American Court of Human Rights. Although decisions by these bodies are not binding on U.S. courts, they can be one component in advocacy campaigns in legislatures and public opinion. This two-pronged strategy is beginning to show victories, including in the Supreme Court last week.

Most people describe the Supreme Court as conservative. However, the Court ended its term by issuing several rulings challenging that characterization. The Court's decisions upholding affirmative action and striking down a Texas law banning sodomy (and overturning an earlier decision prohibiting these practices) gave Democrats something to cheer.

Yet, the Court did something more significant than simply supporting these traditionally liberal positions. In each of these decisions, the Court favorably utilized international law in ways that show a growing awareness of relevant sources of legal authority beyond America's borders. This recognition demonstrates that the Court is beginning to pay attention when advocates claim that the United States is out of line with generally accepted international legal norms.

First, in their important concurrence in the Michigan Law School affirmative action decision, Justices Ginsburg and Breyer indicated that the Court is more likely to uphold U.S. laws agreeing with their international equivalents than those that disagree. The two Justices noted that the Court's observation that race-conscious programs must have a logical end point accords with the international understanding of the purpose of affirmative action. They also found that the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, endorses special and concrete measures to ensure the development and protection of certain racial groups.

In addition, in their dissent in the college affirmative action case, Justices Ginsburg and Souter drew on contemporary human rights documents to distinguish policies of oppression from measures designed to accelerate de facto equality. Taken together, this language is the Court's strongest statement to date supporting the important and growing links between domestic and international law.

Second, and even more notable, in his decision striking down the Texas anti-sodomy law, Justice Kennedy drew lessons from a similar case decided by the European Court of Human Rights. He noted that the European Court's ruling was authoritative in all countries of the Council of Europe and suggested that the U.S.'s lack of agreement on this fundamental issue indicated that the Court should rethink its analysis of the issue. Justice Kennedy also favorably cited an amicus brief submitted by former UN High Commissioner for Human Rights Mary Robinson demonstrating that many countries have taken action consistent with affirming the protected right of homosexual adults to engage in intimate consensual contact.