Justice Stephen Breyer of U.S. Supreme Court Reflects on “The Court and the World”

“The best way to protect our American values is to know what’s going on beyond our shores,” stated Stephen Breyer, associate justice of the United States Supreme Court, summarizing the thesis of his new book, The Court and the World: American Law and the New Global Realities.

Breyer visited Columbia’s Italian Academy on April 14, 2016, to deliver SIPA’s Gabriel Silver Memorial Lecture. Introducing Justice Breyer, SIPA Dean Merit E. Janow and Columbia University President Lee C. Bollinger reflected on the importance of the book in today’s increasingly globalized and interdependent world. Bollinger noted that “Justice Breyer has taken positions on the courts that are incredibly creative and greatly needed.”

In conversation with Janow and Bollinger, Breyer discussed ways in which the Supreme Court has evolved over his 20 years as a justice. He suggested that the changes he’s observed in the Court’s docket are not the result of “changes in the philosophy of judges,” but rather “changes in the nature of the world,” with “15 to 20 percent of cases now requiring some understanding of foreign and international law.”

One example Breyer referred to is how the Supreme Court’s role in checking executive power on matters of national security has evolved over time. In the case of Korematsu v. United States, the Court upheld the constitutionality of Executive Order 9066, which allowed for the internment of 70,000 Japanese Americans in camps during World War II. However, not even a decade later in The Youngstown Steel Case of 1952, the Court ruled against President Truman’s executive order to seize steel from private mills during the Korean War.

Breyer then cited Hamdi v. Rumsfeld, which was one of four cases brought to the Supreme Court in 2004 by enemy combatants detained at Guantanamo Bay. During the ruling, Justice Sandra Day O’Connor delivered an opinion on the essential role of all three branches of government in the protection of individual liberties, stressing that: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” While the Court’s ruling was criticized at the time, Breyer underscored the importance of balancing national security with civil liberties so as “not to go back to Korematsu.” For this reason, he added, it is incumbent upon us “to look to see what other countries” with similar traditions of civil liberties and democracy do when faced with threats to national security.

Another example of how globalization has shaped the legal landscape is in the realm of commerce, where international trade has doubled in the last 40 years, from 15 to 30 percent of global economic output.

In the case of Empagran, a European vitamin cartel sued by an American distributor for price-fixing, Breyer noted that foreign briefings on the EU anticartel mechanism were essential for the Court’s interpretation of the American antitrust statute. In this situation, comity and the rule of reasonableness were invoked, as is often the case, out of respect for the sovereignty of foreign jurisdictions and to “harmonize and further advance similar areas of law in other countries.”

With regard to the 2013 case of Kirtsaeng v. John Wiley & Sons, Inc., pertaining to copyrighted textbooks that had legally been printed in Thailand and imported to the United States for resale at a higher price, Breyer received a stack of briefings from all over the world, one of which stated that the outcome would affect approximately $2.3 trillion in global commerce, as everything—from music to software to automobiles—is copyrighted today. Breyer emphasized that it is his job, as a judge, to know about publishing systems in other countries as well as the Berne Convention, the international agreement governing copyright. Likewise, Breyer observed, it is important for law schools like Columbia to train lawyers to read and call upon foreign and international cases and know “what they stand for against a background of knowledge.”

Justice Breyer posed a challenging and crucial set of questions regarding the Court and its evolving relationship with the world, and through the discussion of cases on the Court’s docket, persuasively illustrated the central thesis of his book: “As the world has grown steadily ‘smaller,’ the Court’s horizons have inevitably expanded.” If it is to arrive at answers to these questions, the Court is “obliged to consider a great many more matters that now cross borders.”

— Laura McCreedy and Lindsay Fuller MPA ’16

Stephen Breyer, associate justice of the Supreme Court, delivered SIPA's annual (2016) Gabriel Silver Memorial Lecture.