As the Senate hearings addressing the nomination of Judge Sonia Sotomayor to the United States Supreme Court proceed through the thickets of legal concerns, one issue that appears to be rather arcane to the average American may be among the most significant. Indeed, it reflects a philosophical dispute that underlies many of the questions at the hearings. Does Judge Sotomayor believe the Supreme Court should be able to cite international and foreign law in its decisions? Let’s be frank: considering some of the esoteric sources cited in many Supreme Court opinions, why would anyone spend more than a moment on what sources the Court will refer to? Yet, this issue has become a focus of significant debate.

Although many members of the Court have cited to international and foreign law at one time or another (including Justices William Rhenquist, Antonin Scalia, Sandra Day O’Connor), none have asserted that international and foreign law have any determinative or precedential value in the U.S. legal system. Moreover, citation to international and foreign law in common law cases has rarely been challenged. Rather, the issue is centered on the reference to international and foreign law when the Court is addressing the Constitution. In fact, this issue has served as a cloak for the ongoing debate between the “originalists” (those who assert that the original wording of the Constitution and its context at the time are the sole measure as to the meaning of the Constitution) and the “evolutionists” (those who assert that we must measure the meaning of the Constitution with at least an eye on its contemporary context) over the appropriate way to interpret the Constitution. In effect, the “originalist” argument states that to allow reference to foreign and international law is not merely to align oneself with foreign interpretations that could be inconsistent with the context of American constitutional law (because the sources and therefore the meaning arises in different contexts), but that the use of these foreign sources undermines the very meaning of the Constitution’s drafters and by implication American sovereignty itself. Therein lies the bedrock debate: although international and foreign law is neither mandatory nor precedential, the fear is that these references will be used as tools to pervert the essence of the “originalist” philosophy of constitutional purity. 

An interesting side note in this debate is the history of consideration of international law by the Court. For example, in Sabbatino v. Banco Nacionale de Cuba (1964), Justice Harlan, speaking on behalf of the majority, considered when might it be appropriate under U.S. law to apply international customary law as to the expropriation by a foreign sovereign of property wholly within its territory and the appropriate compensation that might be warranted by the taking. Sabbatino involved the disposition of property in Cuba purchased by a private party prior to the 1959 Cuban revolution but seized and resold by Cuban governmental entities pursuant to a decree of the Cuban government after the revolution. The private purchaser whose property was expropriated asserted that the property was taken without complying with the international law standard of prompt, effective and just compensation. Despite Justice Harlan’s concern about the Act of State Doctrine (AOSD) (a judicially created doctrine that precludes review of the legality of an act of a foreign sovereign performed wholly on its own territory) he would have applied the international customary law standard for expropriation if he could find consensus among nations as to the appropriate standard. Unable to find consensus he stated that the AOSD precluded an examination of the legality of the Cuban taking.  A primary underlying rationale for the AOSD is the potential conflict between the executive and judicial branches of the Unites States government as divided by the separation of powers under the Constitution. Justice Harlan chose not to overcome the AOSD preclusion not because it is inappropriate to consider and apply international law in this constitutional context, but rather because the international law in the area of expropriation was too unsettled to set an international law standard.

Those who rail against the citation and analysis of international and foreign law by the Supreme Court fail to consider that the Supreme Court has never barred one state from citation to and examination of another state’s constitution as an aid in the analysis of its constitution; that the Court often makes reference to secondary resources that have their origins in international and foreign law; or that Americans have historically used comparative law to examine and develop our own law. And there is the rub. If we allow the developmental experiences of international and foreign law to be a source in aid of understanding our Constitution, it will vary the literalism necessary for the preservation of the originalist doctrine.  Maybe this is why Senator Sessions and others (see, for example, Michael Chertoff in “Questions for Judge Sotomayor” in the Op-ed section of the New York Times on July 13, 2009) have raised what seems like an esoteric topic into an issue of significance.  Not surprisingly, it appears that Judge Sotomayor has never faced this issue in her voluminous history as a litigator or jurist. Although Judge Sotomayor will probably refuse to prematurely judge this issue, it has joined Roe v. Wade as a perennial for future Senate hearings for future nominees to the Court.