THE KATE STONEMAN PROFESSORSHIP LECTURE
For a number of years, international law scholars like Harold Koh and activists like Dorothy Thomas have admonished domestic civil rights lawyers to "bring international law home."(1) Domestic activism is needed, according to Thomas, because the United States government has systematically tried to "shield itself from international accountability" by encouraging "a kind of learned insularity" of civil rights groups.(2) As a result, civil rights groups that are adamant in calling for domestic reforms to address race and gender discrimination and other civil rights issues have rarely framed those demands within the international context of human rights, and have seldom linked arms with groups outside the United States in pressing those claims.
In large part, the approach of civil rights groups has been pragmatic. Civil rights lawyers have limited budgets, limited human resources, and must make hard decisions on how to focus their work. Until relatively recently, groups like the ACLU, the NAACP Legal Defense and Education Fund, and NOW Legal Defense and Education Fund, as well as other public interest legal groups, looked almost exclusively to litigation as the driving force of their work to expand and protect civil rights in this country.(3) Legislative and media efforts have expanded in the past few years (and those efforts are more likely to have international components), but litigation is still at the core of civil rights legal work.(4) Like other litigators, civil rights groups advocates look at judges, and assess what they will find persuasive. International law has not fit that criteria. Indeed, some litigators have been concerned that citations to international law would signal an essential weakness in their case under domestic law.
That status quo is rapidly changing, however, and that is what I want to explore with you today. First, I want to bring you up to date on the Supreme Court's rather sparse record of looking to international human rights law in ruling on domestic civil rights issues. Second, I will explain why it is important that the Supreme Court begin routine and regular examination of international and comparative law norms when it considers domestic civil rights issues. To be clear, I am not arguing that courts should cite international law as controlling authority, though that may sometimes be appropriate, but simply as persuasive authority. It seems to be a small step, but surprisingly it is one that the courts have yet to embrace. To support this argument, I will describe several analogous situations where United States courts have changed their approaches to decision-making in response to changes in society. Finally, I will discuss two recent Supreme Court cases to assess what impact, if any, this new approach might have on civil rights decisions rendered by United States courts.
INTERNATIONAL AND FOREIGN LAW IN UNITED STATES COURTS
The cases themselves tell the story. The Supreme Court famously ruled in The Paquete Habana that "[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction,"(5) but that principle has been very selectively applied. In a few areas, courts regularly look abroad. For example, the United States law on political asylum and refugee status specifically incorporates international norms, which federal courts construe and apply on a daily basis.(6) Similarly, both federal and state courts dealing with foreign defendants, particularly foreign sovereigns, often look to international legal doctrines and other countries' practices, as do courts examining issues involving the extent of United States' jurisdiction on the high seas.(7)
In contrast, international human rights norms are cited much more rarely. Amicus briefs addressing international human rights law--like that filed in 1982 in Bob Jones University v. United States(8) by the International Human Rights Law Group(9)--are typically ignored by the Supreme Court. Just last year Supreme Court Justice Ruth Bader Ginsburg noted that India's and Germany's Supreme Courts have looked at international precedents to evaluate affirmative action initiatives in their respective countries, but, she added, "[t]he same readiness to look beyond one's own shores has not marked the decisions of the court on which I serve."(10)
When Justice Ginsburg spoke, the Supreme Court's most recent citation to the fifty-year-old Universal Declaration of Human Rights had been twenty-eight years before, in a dissenting opinion by Justice Marshall.(11) Now there is a more recent citation, but one with even less precedential value. In 1999, Justice Breyer, dissenting from the Court's denial of certiorari in an Eighth Amendment challenge to the execution of a prisoner who had been on death row for more than twenty years, cited the courts of Canada, India, Great Britain, Zimbabwe, and the Universal Declaration of Human Rights that had found such prolonged delays to violate human rights.(12) A United States Supreme Court majority "has never referred to any decisions of the European Court or Commission of Human Rights."(13) Indeed, some of the Justices are openly hostile to looking abroad. When Justice Breyer referred in a 1997 dissent to federal systems in Europe, the majority responded, "[w]e think such a comparative analysis inappropriate to the task of interpreting a constitution."(14) The majority opinion was written by Justice Scalia and joined by Chief Justice Rehnquist and Justice Kennedy, with concurrences by Justices O'Connor and Thomas. In 1999, again responding to Justice Breyer's citations of foreign and international authority, Justice Thomas suggested that if there was "any such support in our own jurisprudence, it would be unnecessary ... to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council."(15)
However, this demarcation between international human rights and domestic civil rights law is breaking down. A few state courts and lower federal courts are dabbling in comparative and international law as they consider civil rights issues. I predict that within the next five years, and perhaps much sooner, we will also see a change in the Supreme Court's treatment of international customary law, international conventions and other states' practices.
This change will be much less than the wholesale incorporation of international law that many internationalists have argued for, and which may yet come. Rather, in the near term, the Court will continue to police the limits of its judicial authority insofar as Congress and the Executive have generally deemed the conventions to which the United States is a signatory to be non-self-executing. That is, courts will not override that controversial designation by permitting private rights of action in domestic courts directly under international instruments that have not been independently implemented by Congress. But domestic courts, and particularly the Supreme Court, will begin to view international law in much the same way that social science data was first viewed by courts during the Progressive era--as useful and potentially persuasive authority outside of the narrow framework of precedent. And, like the chicken that precedes the egg, once the courts signal an interest in international law, domestic civil rights groups will quickly reallocate resources to follow suit.
THE IMPETUS FOR CHANGE
Why, after decades of resistance, are United States courts on the verge of this change in perspective? The issue is, for want of a better word, legitimacy. Globalization has now so pervaded our national culture and identities that a court that consistently ignores international precedents and experiences when considering human rights issues, even if merely for their persuasive or moral weight, risks irrelevancy. Historically, the United States judicial system has not ignored, but responded, to such threats to its legitimacy. Based on that history, it would be remarkable if a response to the changes marked by globalization and the breakdown of the dichotomy between national and international human rights law were not in the offing.
Contemporary examples of courts' responses to such challenges to legitimacy abound. In the 1980s and 1990s, federal and state courts responded to challenges of institutionalized bias by instituting race and gender bias task forces across the nation.(16) Challenges to the racial, ethnic and gender composition of the judiciary have led to increased diversity on the bench.(17) Cameras have been put in courtrooms across the country in part to permit broader access to this branch of government and as a way to head off further challenges to legitimacy.(18)
One might argue that these changes are administrative rather than legal, and have little effect on the analysis in judges' actual decisions. But race and gender bias task forces identified a host of judicial practices that often do, in fact, have an impact on ultimate case outcomes. For example, in the California case of Catchpole v. Brannon,(19) the trial judge hearing a sexual harassment case concluded that, because the victim did not resist a sexual assault by her supervisor, it could be inferred that she pursued her supervisor.(20) When the litigant claimed on appeal that the decision was tainted by gender bias, the California Court of Appeals reversed and remanded for a new trial before a different judge.(21) According to the court,
[t]he court's remarks throughout trial show that its conception of the circumstances that may constitute sexual harassment were based on stereotyped thinking about the nature and roles of women ... The average person on the street might therefore justifiably doubt whether the trial in this case was impartial."(22) Further, even if bias were systematically eliminated from judicial proceedings, the...