The court and the world American law and the new global realities

Stephen G. Breyer, 1938-

Book - 2015

"In this original, far-reaching and timely book, Justice Stephen Breyer examines the work of SCOTUS in an increasingly interconnected world, a world in which all sorts of public and private activity--from the conduct of national security policy to the conduct of international trade--obliges the Court to consider and understand circumstances beyond America's borders. At a time when ordinary citizens may book international lodging directly through online sites like Airbnb, it has become clear that judicial awareness can no longer stop at the water's edge"--

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Subjects
Published
New York : Alfred A. Knopf 2015.
Language
English
Main Author
Stephen G. Breyer, 1938- (author)
Edition
First edition
Item Description
"This is a Borzoi book"--Title page verso.
Physical Description
382 pages ; 25 cm
Bibliography
Includes bibliographical references and index.
ISBN
9781101946190
  • Introduction
  • Part I. The Past Is Prologue The Constitution, National Security and Individual Rights
  • Chapter 1. Silence: Cicero and His "Political Question" Counterpart
  • Chapter 2. A Second Approach: "The President Wins"
  • Chapter 3. A Third Approach: "The President Goes Too Far"
  • Chapter 4. "No Blank Check": Guantanamo
  • Part II. At Home Abroad The Foreign Reach of American Statutory Law
  • Chapter 5. Regulating International Commerce
  • Chapter 6. Opening the Courthouse Door: The Alien Tort Statute and Human Rights
  • Part III. Beyond Our Shores International Agreements
  • Chapter 7. Treaty Interpretation: Child Custody
  • Chapter 8. Investment Treaties: Arbitration
  • Chapter 9. The Treaty Power: Structure
  • Chapter 10. Postscript: Home Alone, A Political Discussion
  • Part IV. The Judge as Diplomat
  • Chapter 11. Interchange and Substantive Progress
  • Chapter 12. Advancing the Rule of Law
  • Epilogue
  • Acknowledgments
  • Notes
  • Index
Review by Choice Review

Associate Justice Stephen Breyer (US Supreme Court) has provided a compelling discussion of the relationship between international affairs and the American legal system. The book is the latest in an ongoing debate (especially among members of the US Supreme Court) about the proper role (if any) of foreign law in how American judges interpret the US Constitution. Justice Breyer is clearly an expert in American jurisprudence, and he presents a well-researched argument that cogently explains why it is impossible to avoid these connections between US constitutional law and foreign law by using subjects ranging from national security to international trade. Of course, justices who espouse the opposite viewpoint, that the US Constitution is the supreme law of the land, are equally persuasive, so this book's greatest contribution is likely that readers will become well informed on this issue, and those who agree with Justice Breyer have everything they need to defend their position in this singular volume. As expected, the wording is legalistic in style and prose but not overly tedious. Summing Up: Highly recommended. Upper-division undergraduates and above. --Billy W. Monroe, Prairie View A&M University

Copyright American Library Association, used with permission.
Review by New York Times Review

IN ALL THE FANFARE surrounding the Supreme Court's end-of-term rulings this past June, a little-noticed passage in an opinion by Justice Stephen Breyer quietly revisited a debate that has roiled American law for nearly two decades. Dissenting on the final day of the term from a decision to uphold Oklahoma's new lethal injection protocol, Breyer (joined by Justice Ruth Bader Ginsburg) observed that 137 countries - a full 70 percent of member states in the United Nations - have abolished the death penalty either formally or in practice. Breyer noted further that in 2013 the United States was one of only 22 countries in the world to carry out any executions at all. To the untutored eye, such observations may seem inoffensive enough, albeit on a grave subject. But by citing the experience of the rest of the world, Breyer raised a question that is not about the death penalty at all but is at the heart of a fierce controversy over the future of American democracy. Does foreign law have a place in interpreting the American Constitution? Four of Breyer's eight fellow justices say no. Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito have denounced references to foreign and international law as a threat to the country's tradition of democratic self-governance. At least 18 Republican senators voting against the nomination of Justice Sonia Sotomayor to the court in 2009 cited concern that she would rely on foreign and international law. (In her Senate hearings, Sotomayor denied she would.) On the other side, Breyer and three of his colleagues - Ginsburg as well as Associate Justices Anthony Kennedy and Elena Kagan - have explicitly endorsed some version of the practice. In his lucid new book, "The Court and the World," Breyer contends that events in the world have effectively resolved the foreign law controversy. Playing the judge as enlightened modern technocrat, he offers a reasoned elaboration of the mounting costs that judicial isolationism would entail in our increasingly interconnected world. Globalization, he argues, has made engagement with foreign law and international affairs simply unavoidable. Breyer begins with the area of national security law and individual liberties. In a series of decisions over the past decade and a half, the Supreme Court has pushed back against the absolute power of the executive branch and Congress over detainees. The court has refused, as Justice Sandra Day O'Connor put it in 2004, to give the political branches a "blank check." Breyer observes that involvement in international affairs - a role for the court he sees as relatively new - will require that judges know something about international security problems. Moreover, he adds, why not learn from the efforts of others as we try to solve the same basic problems? After all, reconciling security and civil liberties is a problem that nearly every democratic society confronts. New global challenges also require novel kinds of cooperation among judges in different legal systems. Take human rights cases, for example. When citizens of Nigeria sued Royal Dutch Shell in New York, complaining that the corporation aided and abetted human rights abuses by that country's military and police, the court took up the question of whether allowing such actions to go forward in American courts would produce "unintended clashes" between the laws of the United States and those of other countries. Heeding the objections of the United Kingdom and six other nations, the court concluded that the risks of undue interference were too great and dismissed the suit. Cases arising out of international commerce illustrate similar coordination questions. When a publisher sued a citizen of Thailand named Supap Kirtsaeng for importing cheaper Thai copies of American textbooks for resale in the United States, the court was required to decide how to integrate American copyright law with that of foreign countries. (Kirtsaeng won.) When foreign investors sued an Australian bank for making allegedly fraudulent representations about the value of an American company it acquired, the court had to consider whether allowing such suits would inappropriately override Australia's own laws about securities fraud. (The court concluded it would.) And when foreign businesses charged that price fixing by a worldwide vitamin cartel that had affected American markets also caused damages to them outside the United States, the court had to decide whether American antitrust law gave such businesses a remedy despite the existence of a body of competition law in the European Union and its member states. (The court decided that it didn't.) Breyer's aim is not to assess whether these decisions were correct. His argument is a simpler yet more radical one. To decide such cases intelligently, he insists, judges need to understand and engage with foreign and international law. To do otherwise is to try to navigate the globe with a blindfold. Breyer reports that in his nearly 20 years on the court, he has seen a greater and greater number of cases involving foreign questions. "That," he writes, "is my professional reality." A longer view would reveal that engagement with the world has been an institutional reality at the court for nearly all of its existence. The sudden salience of international questions on the court's docket seems novel only to lawyers of a certain generation. In the decades that followed World War II, the Cold War and the power of American markets gave the rest of the world a distinctively limited role in American law. But in the first century and a half of the Republic, justices routinely took up questions of foreign and international law and international affairs. In cases on the laws of war at sea, for example, justices regularly ruled against American claims of authority to seize foreign vessels. During the Civil War, a dissenting wing of the court came within a single vote of declaring Lincoln's war powers illegal. The dissenters' opinion drew on international law developed largely by foreign sources. In the decades that followed, the court developed influential new theories of congressional power over immigration, Indian tribes and the territories by drawing analogies to international law and the practices of European powers. Breyer is right, however, that 21st-century global engagements pose important new challenges. He is really interested in the coming era of global governance represented by bodies ranging from the World Trade Organization to the International Olive Council. Transnational organizations have already begun to produce regulations in areas as diverse as banking supervision, trucking and Internet domain name registration. As Greek voters discovered this summer, international organizations increasingly confront democracies (including the United States) with real limits on self-governance. These limits are the core of today's foreign law controversy. According to critics on the court and elsewhere, international rule making is government from afar: It threatens the very project of constitutional independence that the framers set in motion in 1787. Breyer, by contrast, sees the role of courts in a radically different light. In democracies, he says, courts are specialized problem solvers. Judicial isolationism, he rightly insists, will make it difficult for judges to address the kinds of problems we need them to solve in the ever smaller world of the 21st century. Breyer's fiercest critics will most likely be unmollified. And in at least one respect they are right: No accounting of the costs and benefits of global integration can by itself resolve the tensions between self-governance and interconnectedness. But democracy has never been a nativist straitjacket. Breyer's book offers a powerful description of the price we would pay for allowing it to become one. Does foreign law have a place in interpreting the Constitution? JOHN FABIAN WITT is a professor of law and history at Yale and the author, most recently, of "Lincoln's Code: The Laws of War in American History."

Copyright (c) The New York Times Company [August 23, 2015]
Review by Booklist Review

In the Internet Age, Justice Breyer looks at the growing impact of globalization on the Supreme Court, which makes decisions that would not have been dreamed of 20 years ago when he started his career. The court is now considering issues of commerce, trade, the environment, security, and communication that no longer involve just U.S. corporations and citizens. Breyer explores four areas: constitutional issues, such as how to protect basic liberties in the face of security threats; statutory issues, such as how to apply American commerce laws to cases involving foreigners; treaty issues, such as competing international dispute-resolution systems; and direct interactions between the courts of different nations. Breyer looks at issues from the mundane (e.g., obtaining records needed to make a sound judgement) to the lofty (e.g., whether the higher level of global awareness and participation by the court will cause more nations to accept the rule of law). In this highly accessible book, he offers historical background and numerous examples of how the court has had to grapple with international issues and the gradual changes that promise the need for even greater global perspective.--Bush, Vanessa Copyright 2015 Booklist

From Booklist, Copyright (c) American Library Association. Used with permission.
Review by Publisher's Weekly Review

Supreme Court Justice Breyer undertakes a high-level analysis of the legal framework that he and others on the Court employ to analyze complex issues that they face. He covers three major areas: the balance between security and civil rights, international commerce (including antitrust and patent law), and treaty interpretations. In addressing each topic, he begins with the history of the Court's jurisprudence and follows with a detailed and closely sourced analysis of relevant recent Supreme Court opinions. Breyer, who is part of the Court's liberal bloc, targets a narrow group of academics, lawyers with specialized practices touching international law, government policy makers, and highly sophisticated lay readers. Of most interest to the latter group is the discussion of the Court's approach to measures that create tension between the civil rights and security. Breyer makes clear that the current Court has not issued a "blank check" to either the president or Congress in regards to infringing upon civil liberties. Also of tangential interest is Breyer's acknowledgement that the Supreme Court has historically been influenced by reactions to previous decisions and the cultural currents of the present. This is a thoughtful and articulate guide for law practitioners and others with a stake in these complex issues. (Sept.) © Copyright PWxyz, LLC. All rights reserved.


Review by Library Journal Review

U.S. Supreme Court Justice Breyer (Making Our Democracy Work; Active Liberty) has written a cogent yet remarkably accessible study of the global legal challenges facing the court. In essence, he argues court justices must increasingly learn about, and take into account, foreign legal systems and international law treaties and conventions because of inevitable global interconnections and complexities in law. This superb book consists of four parts: "The Past Is Prologue: The Constitution, National Security and Individual Rights"; "At Home Abroad: The Foreign Reach of American Statutory Law"; "Beyond Our Shores: International Agreements"; and "The Judge as Diplomat." Individual chapters focus on legal controversies such as detention of "enemy combatants" in Guantanamo, the need for treaty interpretation in certain child custody cases, and issues of statutory interpretation with human rights implications. Breyer convincingly argues that, in order to advance the rule of law and render sound decisions in our increasingly interdependent world, justices must engage in ongoing dialog with jurists and attorneys from other nations. VERDICT Excellent for lay and professional readers who enjoy books such as Jeffrey Toobin's The Nine.-Lynne Maxwell, West -Virginia Univ. Coll. of Law Lib., Morgantown © Copyright 2015. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.

(c) Copyright Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.
Review by Kirkus Book Review

A liberal Supreme Court justice takes on a conservative bugbear. Associate Justice Breyer (Making Our Democracy Work: A Judge's View, 2010, etc.) notes that consideration of the decisions of foreign courts in Supreme Court opinions has recently "sometimes evoked strongly adverse political reactions," even though references to foreign decisions appear from the court's earliest days. The author attempts to allay such concerns by placing the court's modern engagement with foreign law in the context of a global economy. "The objections of critics," he writes, "do not reflect the reality of today's federal court dockets.It is not the cosmopolitanism of some jurists that seeks this kind of engagement but the nature of the world itself that demands it." Breyer argues that as American government and business become more closely enmeshed with foreign governments and with international organizations and commercial interests, federal courts cannot function effectively without taking perceptive account of the decisions and underlying reasoning of other nations' courts. While he acknowledges concerns that decisions based in part on foreign law may lack political legitimacy, particularly in the context of determining what constitutes unacceptable "unusual" punishment under the Eighth Amendment, he dismisses these cases as a sideshow. Breyer illustrates the plethora of international issues confronting the court by examining at length a number of cases involving, for example, the geographical reach of the Securities and Exchange Commission rule prohibiting fraud in securities sales and the interaction between a treaty on a foreign defendant's consular access and American criminal procedure. Breyer's style and exposition are remarkably clear. His summaries of cases are sufficiently detailed to highlight the complexity and subtlety of the issues presented for decision without being entirely daunting to readers outside the legal profession. Nevertheless, few but lawyers will likely have the patience to work through the arguments. A carefully reasoned plea for a continuing engagement of the American judiciary in establishing a worldwide rule of law. Copyright Kirkus Reviews, used with permission.

Copyright (c) Kirkus Reviews, used with permission.

9781101946190|excerpt Breyer / THE COURT AND THE WORLD 1 Silence Cicero and His "Political Question" Counterpart "the laws fall silent" Cicero set forth what would eventually become one of the best-­known legal principles concerning the role of courts during wartime. Two thousand years ago he wrote, "Silent enim leges inter arma," which I should like to translate as "When the cannons roar, the laws fall silent." When the senator wrote those words, he was responding to civil strife that had erupted in Rome, where armed gangs had taken control of the streets. They were never punished, for their leaders had been elected to public office. Still, we see the point of Cicero's remark: When the security of the state is threatened, do not expect the laws to apply. To what extent has that principle governed the actions of American courts? Consider the principle in the context of the American Civil War. At the very outset, President Lincoln suspended the writ of habeas corpus.1 That ancient writ traditionally allows anyone in detention to challenge the lawfulness of his confinement by getting word to a judge that he is being held, in his view, without legal authority. And the judge can then tell the jailer, the local sheriff, say, to "bring me the body." Questioning both the jailer and the prisoner, the judge can discover the legal basis, or the lack thereof, for the prisoner's detention. It would be difficult to point to a more important legal protection against arbitrary imprisonment. President Lincoln's suspension of the writ in effect allowed his military to arrest civilians arbitrarily, without court review. He had seen firsthand a pressing need for such an extraordinary measure. On the way to his inauguration, he had been forced to sneak through Baltimore under cover of night in order to avoid a pro-­secession mob, while transferring from one train station to another.2 Lincoln knew that Union troops from the West and the North would have to negotiate the same station transfer on their way south. And he feared the effect this might have on their ability to travel, on the city of Baltimore itself, and on the State of Maryland, which itself stood on the brink of secession.3 By suspending the writ, Lincoln intended to allow Northern troops to arrest disloyal Baltimore citizens. And that is just what they did. Early on the morning of May 25, 1861, on the orders of General William H. Keim, they arrested John Merryman, who had been a ringleader in anti-­Northern riots that spring, and held him at Fort McHenry, a nearby post under the command of General George Cadwalader.4 Merryman immediately asked a nearby federal court to issue a writ of habeas corpus. And the court's judge, Supreme Court Chief Justice Roger Taney, sitting as a local circuit judge, agreed to do so.5 At first glance, Lincoln's actions to stop judges like Taney from issuing the writ might seem constitutional, for the Constitution authorizes suspension of the writ of habeas corpus "when in cases of rebellion or invasion the public safety may require it."6 But this grant of authority appears in Article I, which deals with Congress's powers, not in Article II, which addresses the powers of the President. Hence, Taney concluded, the President, by acting without congressional authority, had violated the Constitution.7 President Lincoln's reaction to the court's decision is well known. He did not release John Merryman. Neither did he appeal the ruling, as he might have done. Rather, he defended his right to take decisive unilateral action. A few weeks after Merryman's arrest, he asked Congress, "Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"8 A week later Attorney General Edward Bates presented Congress with a report justifying Lincoln's decision to suspend the writ of habeas corpus.9 Still, the same day as the Bates report, Merryman was released on bail, and Lincoln did not prosecute him. And two years later Congress itself suspended the writ of habeas corpus, thereby curing the constitutional defect. The controversy about the President's powers fizzled out without any definite resolution.10 Merryman's detention, however, is but one of many examples of how President Lincoln suspended or sidestepped constitutional protections of civil liberty in the name of national security. He also authorized his generals to censor the press, to prevent citizens from speaking vociferously against the war (accusing the President of "malfeasance," for example), to arrest suspected supporters of the enemy, and, often, to hold prisoners without trial irrespective of whether ordinary courts where they might have been tried were open and functioning. The generals exercising this authority did so by general order; they did not need to prove that, say, hostilities required their actions. In this way, they imprisoned about thirteen thousand citizens during the war.11 Secretary of State William H. Seward once told a British minister, 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; and no power on earth, except that of the President, can release them. Can the Queen of England do so much?12 This attitude reflects that of many American presidents during wartime. During World War I, the Wilson administration successfully prosecuted distributors of leaflets urging resistance to the draft. It barred leftist magazines from using the mails. And it jailed Eugene V. Debs, the leader of the American Socialist Party (who subsequently received nearly one million votes in the presidential election of 1920 while incarcerated).13 During World War II, President Roosevelt ordered the internment of more than seventy thousand Americans of Japanese origin, an action that the Supreme Court upheld. Roosevelt's attorney general, Francis Biddle, once said that "[t]he Constitution has not greatly bothered any wartime President."14 During war, the executive and legislative branches typically believe that the foreign threat--­not the preservation of civil liberties--­is the paramount concern. And at times throughout American history, the judiciary has agreed. While the Civil War raged, with the exception of Merryman, the courts did not meaningfully interfere with presidential or legislative decisions. Once the Civil War was over, however, the Court was in a position to take a different view, and in 1866 it heard the case of Ex parte Milligan. Two years earlier, just before the war's conclusion, a Northern general stationed with his troops in Indiana had arrested Lambdin P. Milligan and four other civilians. The general charged them with conspiring to foment an insurrection designed to help the South. He set up a special military tribunal, which tried the accused, convicted them, and passed a sentence of death. The defendants asked an ordinary federal court to hear their claim that the army could not try American citizens in a special military court, at least not when conditions in the area were peaceful and ordinary civil courts were open. The case eventually reached the Supreme Court.15 Urging the Court to deny the defendants' claim, the government's lawyer took a page from Cicero and argued that "[t]he officer executing martial law is at the same time supreme legislator, supreme judge, and supreme executive. As necessity makes his will the law, he only can define and declare it."16 The government maintained that the Constitution's provisions protecting basic human rights are "peace provisions . . . and, like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law."17 The Court unanimously rejected this claim. All its members agreed that the Constitution's protections applied and that Milligan must be released. A minority of the justices added an explanation to the effect that Congress had not enacted legislation permitting military trials for civilians, implying that the result might have been different under such circumstances.18 The majority, however, held that the Constitution did not permit military trials of American civilians in places where, and at times when, ordinary civil courts were open, whether or not Congress enacted laws authorizing such proceedings.19 Milligan, then, represents something of a retreat on the part of the Court from the absolutism of Cicero, and a willingness to enforce constitutional protections in the face of a claim by the executive that the laws should be silent "amidst arms." Still, it bears emphasizing that the case was decided only after the war had ended and relative normalcy had returned. We should not be surprised to find a different judicial attitude in later cases decided in the heat of battle, such as the World War II case of Korematsu. If Milligan signaled to the executive branch that there were limits to what the Court would permit in the name of wartime necessity, it was something less than a full or permanent flight from Cicero. "the political thicket" The doctrine of the "political question" is more specific and better developed than Cicero's maxim as crisis jurisprudence, but as applied to questions of national security, it is nonetheless in the same spirit. It provides a technical legal basis for courts to refuse to consider the lawfulness of presidential action taken pursuant to either his wartime or his foreign affairs powers. Indeed, by walling off many of the President's wartime and foreign affairs decisions from review, it is but one step removed from Cicero. The doctrine says that in certain instances, the Constitution gives not to the courts but to other branches of government the power to decide whether an action violates the Constitution. In this way, the laws, including the Constitution, do not necessarily fall "silent." They still apply to the government action in question. But it is for Congress or the President, not the courts, to determine what the law requires given the national security threat. The doctrine has a venerable provenance. In 1803 Chief Justice John Marshall wrote in Marbury v. Madison: "By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience."20 The Court has since invoked the doctrine in both wartime and foreign relations cases. During the War of 1812, for example, the President called up the New York State militia for service. Jacob Mott, a member of the militia, refused to comply. He was court-­martialed and convicted of refusing to report for duty. He appealed, and his case came to the Supreme Court.21 Mott conceded that the Constitution gives Congress the power to "provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions."22 He agreed that Congress had enacted a statute stating that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion.23 But, Mott argued, the President had failed to establish the presence of an "imminent danger of invasion." Hence he had not met the statutory requirement. And since the Constitution gave him no independent power to call up the militia, Mott argued his call-­up was impermissible.24 The Court rejected Mott's claim, not because it agreed with the President about the risk of invasion, but because it thought this risk was the kind of question that the Constitution denied the Court the power to decide. Justice Joseph Story wrote that the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But . . . it is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. . . . [I]s it to be considered as an open question .  . . to be contested by every militia-­man who shall refuse to obey the orders of the President? We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.25 The Court further developed the "political question" doctrine during the 1840s, in a case concerning the government of Rhode Island.26 The petitioners had argued that the new state constitution--­under which their rivals had claimed authority and called upon the federal government for military support--­violated the federal Constitution's guarantee of a "republican form of government."27 But the Supreme Court held that the matter was a "political question," grounding its decision in the idea that the political branches should have unfettered power over national security matters. Referring back to Mott's case, Chief Justice Taney explained why the Court could not second-­guess a determination by Congress or the President as to the legitimacy of a state's government: After the President has acted and called out the militia [in support of one group alleging to be the true state government], is a Circuit Court of the United States authorized to inquire whether his decision was right? Could the court, while the parties were actually contending in arms for the possession of the government, call witnesses before it and inquire which party represented a majority of the people? If it could, then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the government which the President was endeavoring to maintain. If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order.28 The same theme would be expounded by the Court into the twentieth century, in Chicago & Southern Airlines, Inc. v. Waterman S.S. Corp., a case involving the award of an international airline route.29 A statute had given the courts the power to review route awards to airlines by the Civil Aeronautics Board. The Court, however, held that this power did not apply when the President himself had approved the final decision. That is because, as Justice Robert H. Jackson wrote, the President, both as Commander-­in-­Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. We therefore agree that whatever of this order emanates from the President is not susceptible of review by the Judicial Department.30 Not surprisingly, then, during the Vietnam War, lower courts invoked the "political question" doctrine in refusing to decide whether Congress had properly authorized the Cambodian bombing or the war itself.31 And the Supreme Court did not intervene.32 Many of these decisions--­particularly the Vietnam cases--­involve challenges to the lawfulness of a war itself. They do not necessarily prevent federal courts from deciding whether a presidential action violates an individual's civil liberties, a different question. But in any event, during the past half-­century, the "political question" doctrine has gone into decline, having reached its jurisprudential high-­water mark in 1946, in Colegrove v. Green.33 There the Court decided that the doctrine prevented it from reviewing a claim that Illinois had unconstitutionally redrawn its voting districts as to ensure that some counties (typically rural ones) received representation disproportionate to their numbers, with the effect that each voter in the more populous districts now exercised less political influence than a voter in the less populous districts with the same congressional representation. The Court held that it "ought not to enter this political thicket" and that the remedy for unfairness in districting was for the electorate "to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress."34 Less than twenty years later the Court would overturn Colegrove. In Baker v. Carr, it did indeed enter the "political thicket," deciding the constitutional question at issue and ultimately interpreting the Equal Protection Clause as obligating legislatures to draw districts according to the "one person, one vote" principle.35 The Baker Court would still acknowledge, however, that the "political question" doctrine remained valid outside the realm of electoral apportionment.36 In particular, it would continue to apply where there was "a textually demonstrable constitutional commitment of the issue to a coordinate political department[,] . . . a lack of judicially discoverable and manageable standards for resolving" the question, and where the Court could not decide the issue presented "without an initial policy determination of a kind clearly for nonjudicial discretion."37 In other words, the doctrine apparently continued to have force in matters of war and national security. But since Baker, the Court has hesitated to apply the "political question" doctrine even to cases involving foreign affairs. In 1979, for example, several members of Congress petitioned to the effect that the President could not, without the consent of Congress, withdraw from a treaty with Taiwan.38 The Court debated whether it had the power to decide the case. Some justices maintained that it could not, for the case presented a political question.39 Others pointed out that the Court frequently decides whether the Constitution limits the President's or Congress's powers.40 Still others wrote that, even if the Court could sometimes determine the boundaries of congressional or presidential authority, it would not be prudent to do so in this case.41 Ultimately, the Court refused to decide even whether a political question presented itself. Instead, it dismissed the case in a per curiam order, without hearing oral arguments or addressing the underlying issue.42 More recently the Court considered a case questioning the lawfulness of a long-­standing State Department policy specifying that the birthplace of an American citizen born in Jerusalem be given as "Jerusalem" rather than "Israel or Jordan" in his passport.43 The courts were asked to review this policy in light of a congressional statute requiring the State Department to describe the birthplace as "Israel" if the citizen so wished. Did the statute unconstitutionally interfere with the President's power to conduct foreign affairs?44 The lower courts had decided that the case presented an unreviewable political question.45 But the Supreme Court held to the contrary. All the justices but one (and I was the one) considered the matter of deciding what the statute meant and whether it was constitutional to be "a familiar judicial exercise."46 My colleagues believed the courts should not avoid the question by invoking the "political question" doctrine.47 They consequently sent the case back to the lower court for a decision on the merits.48 Though alone, I saw the case differently. "In the Middle East," I wrote, "administrative matters can have implications that extend far beyond the purely administrative."49 The secretary of state had argued that requiring her to stamp the word Israel on a passport would represent an "official decision by the United States to begin to treat Jerusalem as a city" under Israeli sovereignty.50 She maintained that upholding the statute would have significant foreign policy implications (a conclusion that others denied). Because of our inability to know the answer to this kind of dispute, I concluded that the merits of the case raised a political question, which the other two branches should resolve between themselves.51 What matters for our purposes, however, is that the other members of the Court disagreed with me. They thought that, even there, the doctrine did not prevent the Court from reviewing the merits of this foreign policy-­related question. The upshot is that neither the classical view of Cicero nor the "political question" doctrine prevents today's Court from reaching, and deciding the merits of, many questions in which security and civil liberties collide. But there are other doctrines, embodied in other cases, that have had much the same effect. Excerpted from The Court and the World: American Law and the New Global Realities by Stephen Breyer All rights reserved by the original copyright owners. Excerpts are provided for display purposes only and may not be reproduced, reprinted or distributed without the written permission of the publisher.