U.S. Supreme Court Justice Stephen Breyer gave the Keynote Address at the Assembly on Thursday March 31, 2016. Justice Breyer was introduced by Lori Fisler Damrosch, President of the American Society of International Law.
REMARKS BY STEPHEN BREYER
I am here to talk about my book, which has the unpretentious title of The Court and the World. Why did I write this book? I wrote it as a kind of report. You are the specialists in this area, and I want you to help us. I want to talk to other people, to tell them that what you are doing is relevant to what they do, and I want to talk to you to tell you, "Please help all of these others." The best way to do that is to give a report. It is a report from the front. I am not suggesting anything; I am telling you what we do.
When I started twenty years ago, there would be an occasional case that required knowledge of some other law or international law. Today, that is much more than occasional; it is 15 or 20 percent. Very often, the information is not there, or at least we do not know how to find it. Do you know The Charterhouse of Parma! In The Charterhouse of Parma, the hero, Fabrice del Dongo, starts off at the beginning wandering around Waterloo. There are bullets flying, horses racing back and forth, and there is fog. Napoleon is riding his horse and comes up and runs away, and what del Dongo is thinking to himself is, "Something really important is happening here. I wish I knew what it was." That is how many of us feel when we hear the words "globalization" and "interdependence." What is it actually about?
I cannot tell you the answer to that, but what I can do is illustrate what is going on under that rubric, in our Court, over the last few years. I break that down and try to explain to people the kind of cases we have, and hope that they will draw the conclusion that we ought to have a lot more knowledge than we have. They draw that conclusion in most of our cases, but they are too polite, usually, to say it.
What kinds of things? I will give you a few examples. Take what is a big question of great, general interest: How are we to weigh interests in national security versus statutes, laws, or practices that infringe on the traditional area of civil liberties in the name of protecting security? There are far fewer cases on that subject than you think. That is what Justice Jackson said in the Steel Seizure case. He said that if you go back and look at what the law is on the power of the executive in this kind of situation, you will discover what the Founders thought. It is like Joseph being asked to interpret the dreams of Pharaoh.
That was a good line, and quite true. Why are there so few cases? In part because judges, for many years, including judges here, followed Cicero's advice. Cicero said, "When the cannons roar, the laws fall silent." Before you think that is a good translation, remember that somebody raised his hand and said, "You know, the Romans did not have cannons."
But still, you see the point. That was what judges followed, including us. Go back and look at the Civil War. Go back and see what Lincoln did and what the Supreme Court did during the war. Nothing. The Secretary of State, Seward, called in a British minister and said, "I can touch a bell on my right hand and order the imprisonment of a citizen of Ohio; I can touch a bell again and order the imprisonment of a citizen of New York." He went on to say, "Can the Queen of England do so much?" The Court did get around to deciding cases involving that kind of thing--after the war was over.
Read the history of Wilson in World War I. Remember Learned Hand's case? There are dozens of them. What happened to free speech? I do not know. Something happened to it, but there was not much in the Court at that time about it.
Jump to World War II, and what do we find there? We find 70,000 American citizens of Japanese origin, put in camps--moved from their houses on the West Coast and put in camps--because General DeWitt thought it was a good idea. I was young then, but nonetheless, I can remember blackout curtains. DeWitt was afraid San Francisco would be invaded, and people did think that might be so. He justified internment by saying that there had been hundreds of instances of signaling to submarines offshore and multiple instances of sabotage.
Korematsu, contrary to his parents' advice, said, "They cannot do this to me! I am an American! I have not done anything." He got a lawyer, Ernie Besig, who was the lawyer for the ACLU--and by the way, some people in the ACLU did not want to support him in this case. Korematsu was certain he was going to win. He got to the Supreme Court by 1944, when there was no risk of invasion at all. None. Zero. No one thought we would be invaded in 1944. Two lawyers in the Justice Department, Ennis and Burling, became suspicious of all of DeWitt's figures, and they called in the FCC and said, "What were those hundreds of instances of signaling?" The FCC responded and said, "There were not any. The people who reported these instances were buck privates. They did not know how to work the equipment. And you did a good job."
J. Edgar Hoover said there was no sabotage that we cannot handle. There is no need for this. The person who wanted it? Earl Warren, and he later said it was one of the worst things he ever did. But he was for it...