Reading Justice Kennedy’s Tea Leaves

Scholars like myself who write on the formerly-arcane-now-bizarrely-fashionable issue of the role of international law in U.S. courts were sorely disappointed by Justice Anthony Kennedy’s keynote address a few weeks ago at this year’s Annual Meeting of the American Society of International Law. The past four years of ASIL having witnessed Justices Breyer, Ginsburg, O’Connor, and Scalia speak at length on the issue, Justice Kennedy departed from established tradition and instead gave the crowd a moving (even if somewhat depressing) speech on the dangers of genocide and our obligations as lawyers to do something about it. (Peggy McGuinness at Opinio Juris blogs about it here. Tony Mauro reports on the speech here.) He even declined to answer a question asking him for his views on using international law from none other than Anne-Marie Slaughter (former president of ASIL and now dean at Princeton), simply responding that “we should be judged by what we write.” But Justice Kennedy has not always been so reticent. In a speech just last year before the Eleventh Circuit Judicial Conference, he discussed at length the numerous international law issues before the Court, and defended the Court’s use of foreign legal sources in its decisionmaking.

All of which leaves me wondering: Has Justice Kennedy suddenly lost interest in the debate over the role of foreign and international law? What explains his reluctance to share his views? Have Congressional resolutions condemning the use of foreign authority in US courts lessened his enthusiasm for the practice? Have the diatribes of irresponsible politicians — inspiring death threats from those whom Justice Ginsburg calls the “irrational fringe” – played a role? In short, is Kennedy backing away from his now-famous statement in Roper: “It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom”? Or is it simply that the battle lines have now been drawn, everyone has chosen up sides in this Crossfire-esque debate, and so Justice Kennedy reasonably believed that there is nothing new to be said on the subject?

What does the CoOp crowd think? IS there anything new to be said on this subject? And will Justice Kennedy back away from Roper in future decisions?

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11 Responses

  1. susan franck says:

    The cynic in me thinks that he purposefully avoided meeting the issues head-on in public question time so that he could have the flexibility to maneuver during private deliberations. In Kennedy’s own words “We should be judged by what we write.”

    FWIW, I also left the speech feeling quite different about Kennedy. It was clear to me, having heard his carefully considered yet deeply felt remarks, that Kennedy had a centered moral compass. And I would agree with Prof McGuiness that he was a “man genuinely troubled by the incivility of discourse in the world” and that his remarks were, quite simply, remarkable. Several University of Nebraska law students were attending ASIL for the first time and did not see this – and suggested that he was actually being Kerry-wobbly-esque. But then when they compared the remarks to the other justices at ASIL (Justice Ginsburg’s own comments last year, for example, who also visited and spoke at the Law College last week), they were also suprised at how far out on a limb he went.

    All of this is a long way of saying, the breadth of his remarks should probably be taken in context. And we should wait for the writing on the Supreme Court’s walls – which will probably be covered in Kennedy’s penmanship.

  2. David Zaring says:

    I’m unconfidently predicting that the Supreme Court will not cite to any foreign decisions this term. Now that Padilla and Hamdi are gone. Or at least not in a controversial way. But there’s still Medellin…which will surely get some international tribunals referred to….

  3. Simon says:

    I’m still digesting your two articles on this subject, Melissa, and will have more (and more and more…) to say on them later. But for now, to the question at hand: perhaps part of the reason for the apparent retreat is that it seems as if nobody thinks much of Kennedy’s use of foreign law.

    On the one hand, Justice Scalia has staked out a devastating critique critique of the underlying legitimacy of the use of foreign law that has never yet been answered (I disagree with you strenuously, by the way, and will discuss at more length later, that Scalia rejects comparative materials because he “fears U.S. court participation in dialogue on constitutional issues in part because he does not see it as a true dialogue at all“).

    But worse yet, Justice Kennedy is caught between a rock and a hard place: even among those who do not believe that what he is doing is illegitimate in the first instance, there is broad consensus, I think, among those sympathetic to the use of comparative materials that Kennedy’s approach is self-serving and standardless. For example, you have written (and I agree) that Scalia et al:

    correctly criticize the somewhat ad hoc approach to comparative constitutional analysis adopted by the Supreme Court thus far . . . [In Lawrence, ] [t]he majority cited decisions from the European Court of Human Rights, as well as legislation from several countries that supported its view that homosexual sodomy laws were unconstitutional . . . [but] it [did not] explain why the practices of certain countries were more relevant to the U.S. experience than the many countries around the world who continue to have laws in place prohibiting homosexual sodomy . . . The majority’s approach in Lawrence made it vulnerable to the dissent’s criticism that it was merely imposing “foreign moods, fads, and fashions” on Americans.

    It is hard to escape the conclusion – I would put it in more definite terms than do you – that “the Court has cited foreign courts’ decisions . . . simply because those decisions happen to comport with the desired outcome of the majority of the Justices.” It seems to me that this is the only instance in which it is evercited, approvingly or otherwise. To paraphrase Scalia, I will become a believer in the ingenuousness – though never in the propriety – of the Court’s newfound respect for the wisdom of foreign minds when it applies that wisdom to cases which contradict the desired result of the majority.

    Under fire from all sides, perhaps Kennedy is making a fast retreat – or at least, taking a sabbatical to develop the sort of neutral principles governing his use of comparative materials that would at least partially legitimize it, at least in the eyes of those who believe comparative analysis to be legitimate in the first place. If he can’t convince his enemies, he must at least begin by convincing his allies. I deny that the court should be using such materials at all, but if it is going to, for the sake of its institutional pride it should take pains to at least pretend that it does so in a principled way – whether that is a bidirectional transnational judicial conversation or a unidirectional one – rather than for want of any other materials to support its desired result.

    Lastly, as an alternative, I suppose there’s always the possibility that Kennedy is trying to pour oil on troubled waters (no pun intended); right now, there is a narrow majority on the court that can indulge the use of foreign law, either out of support (Kennedy, Ginsburg, Breyer) or tacit indifference (Stevens, Souter). But that majority will evaporate on the next retirement unless the next nominee is less inimical to using foreign materials than are Scalia and Thomas, and as our Fearless Leader and Alito professed themselves to be during their hearings. And for those who support the use of foreign law, that is currently a far gone possibility; as I see it, the failure of supporters of use of comparative materials to defend their use, and the success of those opposed in characterizing those materials as beyond the pale, has generated a political climate wherein – whatever the actual jurisprudential merits of comparative analysis – a nominee who fails to reject the use of foreign law is not only unconfirmable, but would not be nominated in the first place. I know it’s fashionable in some circles to think of Kennedy as being as dumb as a post, but that criticism is unfair; the man’s not an idiot, and moreover, he is acutely aware of the practical realities of the situation. The only hope Kennedy, Ginsburg and Breyer can entertain for getting reinfocements is to turn down the heat on the debate. Perhaps, given the political realities of the situation, a robust defense of the merits of comparative analysis would have been impolitic.

  4. Paul Stancil says:

    Following up on David’s comment, I think Sanchez-Llamas/Bustillo is a case to watch this term on the general issue of citation to foreign law. Although the case can be resolved without reference to foreign decisions, the briefing and parts of oral argument delved relatively deeply into the manner in which other countries have addressed application of the treaty at issue (Vienna Convention on Consular Relations). Because it’s a treaty case, it’s not quite apples-to-apples with the paradigmatic “foreign law” case, but it could still be instructive. Equally interesting, the conservative justices may find it tempting to cite the ABSENCE of foreign law in support of their rejection of a suppression remedy for violations of the convention. One theme at oral argument was that almost no other jurisdiction has applied a suppression remedy for violations of a detained foreign person’s right of access to consular assistance.

    (Full disclosure: My brother represents and argued on behalf of Bustillo).

  5. Melissa Waters says:

    Susan, I agree that Kennedy’s speech was certainly remarkable, in large part BECAUSE it was so unexpected. I, too, was genuinely moved by his passion for the subject (his voice even trembled as he spoke about our ongoing inability to end worldwide atrocities). And I was impressed that a man of his stature and maturity would embark on a personal study of genocide and crimes against humanity — much less that he would give a speech on the subject to a roomful of international law professors (many of whom are experts in the area). If it had a bit of an “International Criminal Law 101” flavor to it, so be it — his speech was inspiring, nonetheless (and a far cry from the oft-times mind-numbingly dull keynotes that are inflicted upon us at so many law professor conferences).

    That said, I tend to agree with David Zaring. I think we’re unlikely to see much citation this Term to foreign or international law in constitutional interpretation — and certainly not the kind of lengthy discussion of “international opinion” that we got in Roper. (Medellin is a different story, of course.) Of course, for the sake of my ongoing research, I hope we’re both wrong.

  6. Roger Alford says:

    Good question, Melissa. Here is my take on a few issues we might anticipate in the near future on this subject.

  7. JohnLopresti says:

    I think Justice Anthony Kennedy’s time of life is appropriate for addressing humanitarian aims which nations share; and, though fraught with pitfalls in a diplomacy sense, worthwhile as a field of endeavor for a judge looking to make an imprint upon society.

    Beyond that meritorious principled approach to civilization supported by temperate jurisprudence, I detect an ephemeral concern which will resolve when Hamdan is decided; indeed, that is my sense of why the new emphasis upon reading his writing; there is a new Chief Justice installed, one who garnered an impressive unanimity in a narrow decision on a disjointed argument in FAIR very recently. Two new justices have acknowledged humanitarian interests and research in their qualification hearings in congress. So, it is important for Justice Anthony Kennedy to approach this new era of deliberations in a gentlemanly way, wherefrom I respect his discretion in setting the tone of speechmaking. Oratory may be sufficiently subtle to foster one’s ends without raising hackles of politicians who are speaking inflammatorily about the import of US social rulemaking issues as our world evolves. None of this speaks to the public remarks and legal opinions rendered by judges favoring various flavors of neoisolatism. Rather, I see the understatedness of the speech as a way of energizing jurists to act in an arena in which their common interests will be constructive for the world context and for each judge-participant’s own inner growth.

  8. Simon says:


    None of this speaks to the public remarks and legal opinions rendered by judges favoring various flavors of neoisolatism.

    Is “neoisolationist” the current canard among transnationalists (or whatever the adherents of the use of foreign comparative materials in cases without an international dimension) for maligning anyone who does not unhesitatingly sign on to the relevance of such analysis? Does it apply only to those who have made up their minds, or is there a separate buzzword for those who are merely flirting with “isolationism” (superbly played, by the way, to load the sentence with such heavy implication that the comparative crowd are the “norm”, thus rendering even those uncertain about the project quasi-deviant).

  9. Melissa Waters says:

    Simon, I never thought that I would find myself agreeing with someone whose e-mail address is “acolyteofscalia” — but you raise an excellent point in expressing your discomfort with terms like “neo-isolationist” to describe those who raise concerns about the democratic legitimacy of transnational judicial dialogue. Even though I am a (cautious) supporter of U.S. court participation in various kinds of dialogue with their foreign counterparts, I find the increasingly Crossfire-esque nature of the debate to be disheartening, to say the least. And both “camps” are guilty of it, aren’t they? For example, does Justice Scalia REALLY believe that the so-called “internationalist” position can be reduced to a desire to impose “foreign moods, fads, and fashions” on Americans?

    In short, it is high time that “moderates” on these issues begin to develop and articulate our own, more nuanced understanding of the possible role that foreign or international law might play in U.S. courts. This understanding would recognize and celebrate the real benefits that participation in transnational judicial dialogue might bring to American courts — while also acknowledging and taking seriously the democratic legitimacy concerns that this dialogue raises. Can some sort of compromise be struck?

    But this is all fodder for a new post on the issue — one that picks up on Roger’s excellent response to my initial question, “Is there anything new to say here?” I agree with Roger that there is much that remains to be said — so let me say it in a new post on the issue, and then I will look forward to hearing others’ views.

  10. Simon says:


    The saying goes that a broken watch is right twice a day, right? 😉

    I think that comparative analysis is probably helpful in some contexts, and we can all find examples of cases where it is directly relevant, but I don’t think that it’s cases like Olympic Airways that are causing so much concern. Rather, its the use of comparative materials in cases like Roper, where it is used to interpret American laws, and particularly the Constitution, where it becomes problematic.

    To be sure, I don’t think Scalia believes that “a desire to impose “foreign moods, fads, and fashions on Americans” lurks behind the court’s recourse to foreign decisions – I think he believes it is merely the latest fig leaf to hide the imposition of the moods, fads and fashions of certain members of the Court on Americans. His AEI speech makes that view almost explicit – the Court has no desire, he notes, to impose “foreign moods, fads, and fashions on Americans” in its abortion jurisprudence, because those moods, fads and fashions run counter to its own proclivities.

  11. ZF says:

    Simon is right. Scalia’s analysis of the relevant behavior as ‘looking over the heads of the crowd to find their friends’ was just devastating. Even more damaging to the whole concept of citing foreign law has been the subsequent vacuousness of the responses from supporters of the practice.