Last June, Justice Stephen Breyer issued a dissent questioning the constitutionality of the death penalty, arguing that justice ought to expand beyond the American political bubble. Breyer pointed out that 137 countries have abolished the death penalty, and in 2013, the United States was only one of 22 countries in the world to carry out any executions. This wasn’t only a reality check on the U.S., Breyer was also pointing out that foreign law has a place in how we interpret our own constitution. Breyer joined Jim Braude and guest host Jared Bowen (of WGBH’s Open Studio) on Boston Public Radio to discuss his global aspirations and his latest book, The Court and the World: American Law and the New Global Realities.
“I think the question is, when do we as a court, have to look abroad—or should look abroad—to help find answers to a problem of American law,” Breyer said. “The number of instances and the kinds of instances has grown. By pointing out those instances, it makes very concrete what’s meant by ‘interdependence’ in this shrinking world. Those are clichés, but the concrete problems aren’t.”
Breyer argues that many considerations must be made in the creation of legal precedents, particularly global ones. In 1976, Dolly Filártiga contended that her seventeen-year-old brother Joelito had been kidnapped and tortured to death in Paraguay. Filártiga came to New York and discovered that the man who tortured her brother to death was also living there. She found an American law, a statute “probably passed to help victims of pirates in the 1790s,” according to Breyer, which said she could recover from an injury suffered as a result of a violation of the law of the nation. She brought a lawsuit and won, and returned to Paraguay. The court famously wrote, "The torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind.”
After she won, lots of other people in somewhat similar positions brought lawsuits, which Breyer said demonstrates the need to interpret that statute. “And now, the legal questions begin to arise,” Breyer said. “Who are today’s pirates? More importantly, suppose that South Africa writes a memorandum that says they don’t want American judges interfering in our efforts to deal with apartheid… ‘American judges please stay out.’ What are we supposed to do?”
You interpret the statute so that if other countries develop similar kinds of statutes or laws, these can work in harmony, and not at cross-purposes. We all remember the problem where every country in the world wanted to indict Henry Kissinger. If there is chaos there, we don’t want it. Those are tough legal questions; uniformity, non-interference...who are today’s pirates? You can’t answer them without knowing something about what happens in other countries.
Stephen Breyer Associate Justice of the Supreme Court of the United States. His latest book is The Court and the World: American Law and the New Global Realities. To hear more from his interview, click on the audio link above.