Wednesday, October 17, 2018

Justice Stephen Breyer Writes on Courts and Globalization

The October 2018 issue of Atlantic magazine includes an extended essay by Justice Stephen Breyer, titled America's Courts Can't Ignore the World.

Among other observations, Justice Breyer writes, "When I speak to an American audience about the need to be aware of foreign law and events, a member of the audience will typically ask, 'But isn’t the Constitution an American document? Doesn’t it protect American values?' I answer that the circumstances giving rise to more and more cases include foreign circumstances. Indeed, the best way to preserve American values (which are largely the same as contemporary European values) may well be to take account of what happens abroad."

With Justice Kennedy's requirement, the Court lost one of the justices willing to look to persuasive foreign and international precedent to inform domestic decisionmaking.  Of the remaining justices, only Justices Ginsburg and Sotomayor, along with Justice Breyer, have been outspoken in support of the approach, though Justice Kagan is not antagonistic.  Given the timing, could Justice Breyer's essay be directed to the Court's newest Justice?

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