Legalized samesex marriage nationally and reaffirmed health care law. Make news on case involving oklahoma lethal injection method , questioning legality and constitutionality of Death Penalty. I am pleased to have Justice Breyer at this table. Welcome. So much to talk about. Law andabout foreign relationship to Supreme Court decisions and considerations of foreign law. You and other members of the court have different opinions on this issue. It is not simply foreign law. There are lots of things that happened abroad. Cases, more than when i joined the court, require judges to know something about what is going on beyond our borders. Give me an example. Paraguay, comes to new york 1970s, sees0s a man who tortured her brother to death in paraguay. She found the law passed 200 years before, probably to aid victims of piracy, and using that law got damages. She said i came to the United States only to look a torturer in the eye and came away with so much more. Her case has led to many other similar cases. Trying to interpret the statute more than 200 years old is difficult. Who are todays pirates . Court toral district decide what kind of compensation human rights victims should have . Suppose south africa says that we with the truth and Reconciliation Commission want to decide what to do about victims and perpetrators of apartheid, and we would like american judges to stay out of it. How do we interpret that statute . Lotequires us to know a about what other countries are doing in practice in law. I could go on with many other examples. Human rights, security versus civil rights, commercial examples, domestic relations. What would you like to talk about . Members of the court clearly say that you cannot look to foreign law within the Supreme CourtDecision Making process. They do not want to respect for law, do they not . It depends on the case. What theyre thinking of our death cases where judges have , United States and very few countries have the Death Penalty , and they find that relevant because it for businessmans, cruel the cousin forbids punishments because it forbids punishments. That is miniscule. That is something that applies in a very small area. If you look at what our dockets defectut, you will see of interdependence, globalization. You hear those words and say, what do they mean . Its perfectly good as a word, but it is a blur. This is a report from the front. I will make that concrete. I will show you that when you have a student from thailand studying in cornell and he sees his textbook in thailand halfprice. He says to mom and dad, send me books. They send them and he sells them. Can he do it under copyright law . Youre are told that decision will affect 3 trillion worth of commerce. There are copyrights. Labelsware, automobiles, but not honored everywhere. That is correct. There is a statute filled with technicalities. When you buy your car in san francisco, you think you can butit, and you can the question was, suppose the car is made in japan. You would have to have the approval of the Software Copyright holder. There are briefs sent in from lawyers, business people, governments all over the world. , chiefme read to you Justice Roberts at his confirmation hearing, domestic president can confine and shape the discretion of the judges. Findgn law, you can anything you want. If you dont find it in the decisions of france or italy, it is in the decisions of somali or japan or indonesia or whatever. As someone said in another , looking at foreign law for support is like looking out over a crowd and picking out your friends. Because hethat wanted to say, be careful, judge. Do your job. Leventhal was a great judge. The point he is trying to make him a leventhal, is that if you are a judge. There are all kinds of arguments around. It is your job to figure out the correct arguments, correct interpretation of the statute, and if you want to be a bad ch and want judge Supreme Court decisions have consequences. Of course they do. Pick he says, you are a judge. President , precident play the dont want to game properly, you dont need foreign law to do the thing wrong. There are many ways you can do the thing wrong. You can read all kinds of things wrong. Foreign law is irrelevant there. Obviously, where helpful, depends on the case. If foreign law is relevant and helpful in the decision you are faced with, then you should incorporate it in your decision . Of course. If that is all i said, the book would be shorter. What i want to show is where and thatt is relevant in ways affect the lives of many, many, many ordinary americans. You can do that in a lot of different ways to illustrate the fact that we live, truly live, in an interdependent world. Just look at the global economy, where we are today. We are all being affected by what is happening in the chinese economy. The entire world was affected by what happened to us in 2008. Clearly, economies and trade are connected. Yes. We know that. Yes. But for a judge, it is very often a question of how should we interpret the statute governing securities, that statute governing antitrust, that statute governing copyright, and my point here is that today, unlike 2030 years ago, we are trying to interpret those statutes for the antitrust enforcers, the securities enforcers, of several Different Countries, so they can Work Together harmoniously. That is the job of the judge. To do that properly so that it works out properly across the world that if youaying have to take into consideration the ruling that you are about to make, the decision you are about to support or not support, you can in some cases look to what the consequences are of what happened and foreign law in other countries. That is true for every case. Sometimes the consequences are relevant, and sometimes not. You make decisions based on how relevant they are. My point is that what is happening, why is it that in the securities case, why do we have briefs filed by authorities of Different Countries all across the world . Why do we have this new information coming in front of us . How do we evaluate . And Justice Scalia was in the majority, and i agreed. He agrees that you consider what is going on elsewhere. He does agree with that . We must never forget that it is a constitution for the United States of america that we are expanding where there is not first a federal consensus among the people, the views of other nations, however enlightened, they cannot you better ask him what he is thinking. Cannot be imposed no matter how enlightened. You are sitting next to him. Let me give you a good example. What do you think of that statement . It applies in some cases. It is perhaps not exactly the way i would put it. I want to stay away from what other people think. I want to understand what you think. I have to hold up what other people think to see how you differ. Look at guantanamo. We had four cases. They came out in favor of the detained person. They are typical, beginning with Abraham Lincoln, and wartime, the court is sometimes asked, what you think clearly of this effort by the president to restrict traditional Civil Liberties in the name of National Security . That is not an unknown question. ,ou go back to the civil war and you will discover they are quoting cicero. Cicero said, the lost a silent in the time of war. That sound like what Abraham Lincoln believed. Yes. And the courts stayed out of it. By the time you get to the first world war, similar. , that view ledr to 70,000 american citizens of ,apanese origin locked up brought from the west coast against their will and locked up in camps throughout the war. Case, the court said that was ok. 70,000 americans who had done nothing, and there was no good reason. Case, thee seizure court said the president could not seize the steel mills. You see the change . Now we are involved. That to thethat to quantum of cases. In that case, the court interfered. Now go from that to the guantanamo case. Not writetution does the president a blank check. Very well. Have the doctrine of separation of powers, do we not . That is a change from Abraham Lincoln, and stay out of it. We are saying that we are not staying out of it. If it does not write a blank check, what kind of check does it right . That is the question in front of the court. You tell me how to answer that question. Unless if you were on the court unless you know something about the nature of the security problem, and today that means knowing something about threats that imitate from overseas, about threats that are traditional war, about Security Problems that other countries have been involved with, about potentially the use of other kinds of solutions to balance the Civil Liberties problem and the securities problem. If you want an informed decision and a sound decision, those who make that decision have to know more in the security area than just simply reciting some precedent. , even there. Say of course you have to know something from abroad. That is the nature of the world. Seems to me that in every decision, you have to know what , but at the same time, the consequences of the judicial action. And that changes at different times. There has been an ongoing question in terms of what is the constitutional act, even today. Can a president do this . Does the president have these executive powers . This president has been challenged, certainly politically. Muchu agree with me so that you seem to, because of course i think that is true. What i have tried to do is show is encompassing a lot beyond our borders. If i am right about that, in areas of security, several rights, then the problem has shrunk away to minor significance. That is my point. It is that that problem is not so much right or wrong, the one you started with, it is just not very important compared to what in the world is being forced upon us. I would say to those who hold political position that you were quoting, i see why you think that. Youd think that probably because you are afraid that these foreign judges afraid of these foreign judges. The ones you quoted. I would say you probably think that, not you personally, but because you are afraid the foreign judges will melt down our basic american values. I think, and i hope you would think it after reading this, that the way to preserve our basic values of democracy, human rights, rod commerce, etc. The way to preserve it brought a commerce broad commerce, etc. We need to lear we need to record and eight more with what is going on in other countries, not less. Is,hat i am trying to say dont think im trying to argue constitutionut the. Trying to say that all kinds of actions have international consequences. Some of them are based on law. You talk to Certain Companies in silicon valley, google, and they are having some problem being able to get their products sold in a manner they would like to sell them in europe because of laws that are being interpreted. Y regulators in europe it has consequences for them. Correct. What you might not have seen is how the very problem you are discussing is formulated, thrown up on the doorsteps of the have toand the courts develop doctrine to deal with it. That is making the problem you talked about very concrete in respect to the courts. By the way, how Many Organizations do you think there are in the world, organizations created by treaty where there are administrators. They are not one country or the other, but the administrators can make rules that bind more than one nation. If you had to guess, what would you guess . Make rules that bind more than one nation. 15. 2000. And we probably belong to several hundred. Each of those people are out there making rules. Sometimes its called International Trade organization. Will be, what is the status of those rules, to what extent can congress or others say we are going to give those people over there the authorities that make rules to bind you average american. If the answer is zero, we cant we are ready know this country has real problems in terms of its citizens, and more soldiers, in its terms of raising questions at certain times about who can give them orders. There are questions raised by the American Military that american soldiers cannot be under the command of nonamerican generals. They that because the United States worries about International Law in terms of the world we live in. The United States worries about International Law in terms of the hague, who might be brought and will they if for some reason actions were instituted in the International Court of justice in the hague against iraq,ent bush, 43, about as some would like it. I had people that i know wanted to see tony blair be brought to justice as they do find it at the hague. The United States would not recognize that for a second. Would they . It depends on the treaty. If they brought in the example you give, the answer is, you are right. The could the icj interpret a treaty that was signed in such a way that mexico had to have a new proceeding in respect to a death case involving some messing mexican nationals that committed murder in texas. That read to several proceedings in the International Court, our court, a complicated case about the status of that foreign decision under our domestic law. It led to a lot of dispute. Courtt led to several proceedings in the International Court, our court, a complicated case about the status of that foreign decision under our domestic law. Ok, this is what you have said also. The important divisions are not geographical, racial or religious. How do you determine who believes in who does not who believes and who does not . I was recently in russia, do they believe . We are talking about those in power. Help me understand Something Like the kentucky clark and samesex marriage clerk and samesex marriage, someone who decided that the rule of law did , because in that case samesex marriages constitutional, correct . Here is a clerk, a government official, who says that i am not doing it. I cant get into they may ask us to hear it. They . Uld that would give the answer to the very question i am supposed to decide. I know. My curiosity you wrote a dissenting bush v gore. Has the country accepted the fact that it is history now and george bush was president. . In a better position to answer that than i am. , is i find most interesting the difference between those except the rule of law. We did except the rule of law there. I think we explained this we discussed it. The president with the Supreme Court of ghana. Trying in my office and to improve the courts and help them maintain democracy, human rights, and so forth. She said, what is the secret. It is the same point that harry reid made. The most remarkable thing about that decision is rarely remarked. What is rarely remarked is that people did accept it, even though it affects their lives. It affected history. Many opposed it. Many americans opposed it. If youre not prepared to accept decisions that you dont like judges are human. Their decisions may be wrong. If or not prepared to accept that, we dont have the rule of law. What i say to students is, i note 20 of you are thinking that too bad there were not a few riots. To thatou come conclusion, turn on the Television Set and see what pens in countries where where they decide the decisions that way. Committed to deciding under law. That is a great thing, an asset for this country. It is amazing. There is respect for the rule of law. It means it is easy to except when you win. Im not talking about that. Im talking about how important it will all is. The rule of law is. It gives predictability. Correct. I know a lot of people who would not want to engage in transactions in countries that did not have a system of law to express their grievances. Thats right. It is good for prosperity. It is good for human rights. It is good from a point of view of fairness, and the alternative if we turn on television seem to be worse. The question is, how do we keep it and maintain it. Is, iint in this book think it is by participating in what is going on in this world legally. Problems all kinds of that might come up to the courts, but they will further that rule of law. If we dont participate, the world goes on without us. We wont be part of it. Americans . As we did not all dissent from king arthur. Descend from king arthur. Or from charlemagne. Lincoln is at gettysburg, lincoln gives his address a nation conceived in liberty and dedicated to the proposition that all men are created weikel equal. Declaration ofhe independence and said we are engaged in a great war to see if this nation or any nation so conceived and so dedicated can long endure. You see the thought . We are an experiment. Country no other engaged in democracy and the protection of human rights trying to govern themselves. At the time of the civil war, there still isnt one really, although they are coming along. We are here as an experiment to fact so enduren andincolns words, indeed we have with plenty of ups and downs, but that experiment is not over. When i look at this, im trying to do my bit to describe what the challenges are through for lawyers, judges, and americans who are not either. Challenges that we might use law and order to keep that experiment going . That is ultimately why i want us to participate. You want us to participate . It means to begin to think as a judge, a lawyer, of what is going on beyond our shores and the relevance, if there is one, of what you are arguing here to what is going on there. There are plenty of places where it is relevant. Plenty. If there is a body of law that comes under the general and one state has a