Elena Kagan and International Law

In honor of the start of confirmation hearings today for U.S. Supreme Court nominee, Elena Kagan, this post rounds up what we know or think we know about Elena Kagan's views on the role of international law in the U.S. legal system. 

A search of her scholarship available electronically did not reveal any discussion of international and foreign law principles. However, she did make a couple of relevant statements when being confirmed as as U.S. Solicitor General and as Harvard Law School Dean.

When being confirmed as U.S. Solicitor General in 2009, Elena Kagan was asked: "In your view, is it ever proper for judges to rely on contemporary foreign or international laws or decisions in determining the meaning of provisions of the Constitution?"  Ms. Kagan replied:

"This set of questions appears different when viewed from the perspective of an advocate than when viewed from the perspective of a judge. At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General’s office should offer reasonable foreign law arguments to attract these Justices’ support for the positions that the office is taking. Even the Justices most sympathetic to the use of foreign law would agree that the degree of its relevance depends on the constitutional provision at issue. A number of the Justices have considered foreign law in the Eighth Amendment context, where the Court’s inquiry often focuses on “evolving standards of decency” and then on the level of consensus favoring or disfavoring certain practices. By contrast, none of the Justices relied on other nations’ restrictions on gun rights in their opinions in District of Columbia v. Heller, 554 U.S. ___ (2008), and the grounded historical approach adopted in that case (and echoed even in the dissents) would grant no relevance to arguments from comparative law in defining the scope of the Second Amendment right."

In reponse to a later question regarding whether international law prohibits federal and state governments from broadening the application of the death penalty, she replied:

"I do not believe that international law (assuming it has not been incorporated into domestic federal law) can prevent federal and state governments from broadening the application of the death penalty should they wish to do so.  In a case like Kennedy v. Louisiana, 128 S. Ct. 2641 (2008) [finding use of the death penalty unconstitutional for rape], the appropriate question is whether the Eighth Amendment of the U.S. Constitution forbids the application of the death penalty to a particular kind of crime, not whether international law does so."

Finally, as dean at Harvard Law School, Elena Kagan was in charge of some major curricular reforms, which included a much greater emphasis on the teaching of international and comparative law, including a required international and comparative law course in the first year curriculum.  Interestingly, while some knowledge of international law is now required at Harvard, students are not required to study U.S. constitutional law to receive their JD degree.  Harvard's graduation requirements may be found here.

Thus, as Dean, Elena Kagan encouraged law students to gain more exposure to international and comparative law.  But, as Solicitor General, she behaved in a politically saavy manner, and confined her statements to reviewing how the Supreme Court has already used international and foreign law in its Eighth Amendment jurisprudence.  Her own personal views may thus be more open to influence by an international or comparative perspective, but she also has demonstrated the ability and willingness to defend her clients position when arguing the government's cases before the Court.

(cgb)