Tuesday, July 10, 2018

Brett Kavanaugh and Transnational Law

All eyes are now on Brett Kavanaugh, President Trump's latest nominee to the U.S. Supreme Court.  Retiring Justice Kennedy was a leader in looking at transnational law in cases ranging from the legality of the juvenile death penalty to sexual orientation and human dignity.  Will Judge Kavanaugh, who clerked for Justice Kennedy in the 1993-94 term, follow his mentor's lead?  As we continue to dig deeper into Judge Kavanaugh's record, here are three preliminary clues:

First, it's worth noting that Kavanaugh can claim some expertise on international and foreign law through his teaching.  At Harvard and Georgetown, his courses focused on separation of powers and constitutional interpretation, but at Yale in 2011, Kavanaugh taught a course titled "National Security and Foreign Relations Law."

Second, that course was apparently a success, since it spurred at least one Yale student to write a substantial article on treaty interpretation in Medellin v. Texas, titled "Treaty Textualism." In the article, the author thanks Judge Kavanaugh saying "the idea came from him; I merely filled in the footnotes."  The article surveys historical data on framers' ideas of treaty interpretation, looking to discern what meaning should be ascribed to the Supremacy Clause.  Among other things, the author ultimately concludes that the dissenters had the best of the originalist argument in Medellin.

Finally, Judge Kavanaugh served as a clerk for Justice Kennedy during the 1993-1994 term, nearly a decade before Justice Kennedy's most prominent opinions citing international legal authorities.  However, a quick review of Judge Kavanaugh's own opinions on the bench revealed several cases in which he was presented with international law issues, most prominently Doe v. Exxon Mobil, 654 F.3d 11 (D.C.Cir. 2011).  In that Alien Tort Statute case, Kavanaugh dissented when the two other judges on the panel voted to allow the federal ATS claims of injured Indonesian villagers to go forward.  The D.C. Court of Appeals decision was ultimately vacated following a later Supreme Court ATS ruling in Kiobel v. Royal Dutch Shell which adopted some of the same rationales as Judge Kavanaugh's dissent.    



Margaret Drew | Permalink


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