The Judicial Philosophy of Chief Justice John Roberts: an Analysis Through the Eyes of International Law

• Jurisdiction: United States,Federal
• Publication year: 2016
• Citation: Vol. 30 No. 3

The Judicial Philosophy of Chief Justice John Roberts: An Analysis Through the Eyes of International Law

S. Ernie Walton

THE JUDICIAL PHILOSOPHY OF CHIEF JUSTICE JOHN ROBERTS: AN ANALYSIS THROUGH THE EYES OF INTERNATIONAL LAW

S. Ernie Walton^*

Abstract

This Article is about two things: international law in the United States and Chief Justice John Roberts's judicial philosophy. How do the two relate? Quite nicely, actually. First, Chief Justice Roberts has penned majority opinions in several landmark cases directly addressing important international law issues. Second, cases involving international law serve as an excellent window into a Justice's judicial philosophy. Consider Chief Justice Roberts's concluding paragraph in Medellin v. Texas, a watershed case in which the Court held that judgments of the International Court of Justice (ICJ) are generally not enforceable in U.S. courts:

In sum, while the ICJ's judgment in Avena creates an international law obligation on the part of the United States, it does not of its own force constitute binding federal law that pre-empts state restrictions . . . Nothing in the text, background, negotiating and drafting history, or practice among signatory nations suggests that the President or Senate intended the improbable result of giving the judgments of an international tribunal a higher status than that enjoyed by many of our most fundamental constitutional protections.

Federalism, separation of powers, treaty interpretation, U.S. sovereignty—all issues touched on in just two sentences. Moreover, as international law expands from governing only relations between States to touching every area within the jurisdiction of the several states, the status of international law in the United States has come under increasing scrutiny. No longer is it uncontroversial to say that international law is part of our law. Indeed, liberal and conservative Justices routinely split over cases involving international law.

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Part I of this Article will provide an overview of five international law issues in the United States ((1) the presumption against extraterritoriality; (2) international human rights litigation in U.S. federal courts; (3) the doctrine of self-executing treaties; (4) the scope of the treaty power; and (5) customary international law as federal common law) and then provide an update on the current status of these issues under Chief Justice Roberts. Part II draws conclusions about Chief Justice Roberts's judicial philosophy based on the cases discussed and ultimately concludes that the Chief Justice is a prudentialist, a judge who holds fast to "the conviction that federal judges must cultivate the virtues of modesty and humility, staying true to their constitutional duty to interpret the law while fending off whenever possible the temptation to intrude upon the proper provinces of other public and private institutions."

Introduction

This Article is about two things: international law in the United States (U.S.) and Chief Justice John Roberts's judicial philosophy. How do the two relate? Quite nicely, actually. First, Chief Justice Roberts has penned majority opinions in several landmark cases directly addressing important international law issues. Second, cases involving international law serve as an excellent window into a Justice's judicial philosophy. Consider Chief Justice Roberts's concluding paragraph in Medellín v. Texas, a watershed case in which the Court held that judgments of the International Court of Justice (ICJ) are generally not enforceable in U.S. courts:

In sum, while the ICJ's judgment in Avena creates an international law obligation on the part of the United States, it does not of its own force constitute binding federal law that pre-empts state restrictions . . . Nothing in the text, background, negotiating and drafting history, or practice among signatory nations suggests that the President or Senate intended the improbable result of giving the judgments of an international tribunal a higher status than that enjoyed by many of our most fundamental constitutional protections.¹

Federalism, separation of powers, treaty interpretation, U.S. sovereignty—all issues touched on in just two sentences. Moreover, as international law expands from governing only relations between States² to touching every area

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within the jurisdiction of the "several states,"³ the status of international law in the United States has come under increasing scrutiny. No longer is it uncontroversial to say that "[i]nternational law is part of our law."⁴ Indeed, liberal and conservative Justices routinely split over cases involving international law.⁵

Part I of this Article will provide an overview of five international law issues in the United States and then provide an update on the current status of these issues under Chief Justice Roberts. Part II draws conclusions about Chief Justice Roberts's judicial philosophy based on the cases discussed. Before turning to the issues themselves, however, a word is in order about how others have characterized Chief Justice Roberts's judicial philosophy.

In 2007, shortly after Roberts's confirmation, one commentator published an article arguing that Chief Justice Roberts was a prudentialist.⁶ In short, a prudentialist judge is one who holds fast to "the conviction that federal judges must cultivate the virtues of modesty and humility, staying true to their constitutional duty to interpret the law while fending off whenever possible the temptation to intrude upon the proper provinces of other public and private institutions."⁷ In a similar vein, former Attorney General Alberto Gonzalez, one of the people tasked by President George W. Bush to identify Supreme Court nominees, described Chief Justice Roberts's judicial philosophy as comprising four principles: judicial avoidance, judicial deference, narrow construction, and clarity.⁸ Part II will test whether these characterizations are accurate.

I. International Law in the United States Under the Roberts Court

Although international law touches the U.S. legal system in a myriad of ways, only five will be discussed in this Article: (1) the presumption that U.S. statutes do not have extraterritorial effect; (2) international human rights

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litigation in U.S. federal courts; (3) the doctrine of self-executing treaties; (4) the scope of the treaty power; and (5) customary international law as federal common law. In the last six years alone, Chief Justice Roberts wrote majority opinions in landmark cases directly addressing the first four issues.⁹ The fifth issue, customary international law as part of federal common law, was confronted by the Court in 2004, before the Chief Justice joined the Court, and indirectly by Chief Justice Roberts in 2013. Each of these issues will be addressed in turn in this Part.

A. The Presumption Against Extraterritoriality

Nothing in the Constitution limits Congress from passing legislation regulating conduct outside of U.S. territory.¹⁰ In light of political concerns and jurisdictional limits imposed by international law, however, the question is whether Congress actually intends such a result. In a system run by sovereign and equal states, each state, generally, only has jurisdiction to regulate matters within its own geographical territory. This is the central premise behind the "presumption against extraterritoriality."¹¹ "It is a longstanding principle of American law 'that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'"¹² Considered a canon of statutory construction, the presumption against extraterritorial application has been a key component in the Court's jurisprudence since the early nineteenth century.¹³ Over the years, the

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Supreme Court has offered several rationales for the presumption, including: (1) "protect[ing] against unintended clashes between our laws and those of other nations which could result in international discord";¹⁴ (2) that "Congress ordinarily legislates with respect to domestic, not foreign matters";¹⁵ and (3) "that the determination of whether and how to apply federal legislation to conduct abroad raises difficult and sensitive policy questions that tend to fall outside both the institutional competence and constitutional prerogatives of the judiciary" (i.e., separation of powers concerns).¹⁶ Thus, the presumption operates as a nice backdrop against which Congress can legislate, assuming, of course, that the Court's use and application of the presumption is itself clear and predictable.

After gaining traction in the early twentieth century,¹⁷ the presumption "began to wane."¹⁸ Indeed, the Restatement Third of Foreign Relations Law (1987) even went so far as to declare that the presumption, though often quoted by the courts, "does not reflect the current law of the United States."¹⁹ The status of the presumption against extraterritoriality took a dramatic turn in 1991. In Equal Employment Opportunity Commission v. Arabian American Oil Co. (Aramco), the Court considered whether Title VII of the Civil Rights Act of 1964 applied extraterritorially.²⁰ In analyzing this question, Chief Justice Rehnquist framed the presumption against extraterritoriality as requiring Congress to "make a clear statement that a statute applies overseas."²¹ Finding no such clear statement in the text of the statute, and rejecting the use of legislative history and administrative interpretations, the majority concluded that Title VII did not have extraterritorial effect.²²

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Accordingly, Aramco ushered in a new era for the presumption against extraterritoriality. Following Aramco, however, the Court indicated that perhaps it overstated the strength of the presumption with respect to the clear statement requirement. For example, in Hartford Fire Insurance Co. v. California, the majority opinion did not even mention the...