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Supreme Court Justice Stephen Breyer is on a mission. It's a mission to encourage Americans to look beyond their borders. In particular, he wants American judges to pay attention to the work of courts in other nations. The title of his new book states the argument. It's called "The Court And The World: American Law And The New Global Realities." He talked about it with NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: For Justice Breyer, there was an a-ha moment about the importance of law in the world. It was 9/11. He was in India with Justice Sandra Day O'Connor, and they were having dinner at a restaurant with some Indian judges when the burning World Trade Center towers were shown on TV. Breyer says the Indian judges were as horrified as the two American Supreme Court justices were.
STEPHEN BREYER: And I began to understand the important divisions in the world are not on the basis of race or nationality or country or where you live. They are really between people who believe in a rule of law as a way of deciding significant issues and those who do not believe in a rule of law, who believe in force.
TOTENBERG: In the following years, he began noticing that the Supreme Court docket was very different from when he first became a justice in 1994. Instead of just a handful of cases involving the interdependence of law in this and other countries, he says that as much as a fifth of the docket requires knowing how the law functions beyond our borders. Just this month, for instance, a federal appeals court in New York is hearing a case testing whether a federal court order is sufficient to force Microsoft to produce emails from a drug trafficking suspect, or whether prosecutors have to get an order from an Irish court where the emails are stored. Breyer has divided his book into four sections, beginning with national security. As he notes, the law governing national security is quite different today than it was for most of our history, when presidents could do as they wished during wartime. He points, for example, to the case in World War II in which the Supreme Court upheld the internment of Japanese Americans.
BREYER: We put 70,000 American citizens of Japanese origin into camps for no good reason at all.
TOTENBERG: And the court allowed that, says Breyer, because the justices figured someone has to make these decisions - better the president than the court. But by the Korean War, the court had a different view. It ruled that President Truman could not seize the nation's steel mills to keep them operating during a wartime labor dispute. And after 9/11, cases tested the indefinite imprisonment without charges of individuals brought to Guantanamo Bay. In four separate cases over several years, the Supreme Court declared that the president does not have a blank check to violate civil liberties during wartime. And prisoners have the right to challenge the grounds for their imprisonment.
BREYER: Because the nature of security problems has changed - It's not straight out war, it's all kinds of things going on all over the world. It's lasting a long time, and if you say the president has a blank check, you're back to the Japanese camps.
TOTENBERG: Turning to the area of trade and commerce, Breyer gives lots of examples of the interdependent world today. One that's easy to understand is a Supreme Court case involving a U.S. copyright statute. The facts were straightforward, a student from Thailand studying in the U.S. found that his English textbooks - published by a subsidiary in Thailand - were cheaper in his home country. So he got his friends and relations to buy lots of books there and sold them here for a $75,000 profit. The American publisher sued for copyright infringement, but the Supreme Court sided with the student. Breyer, who wrote the decision, notes that if you buy a car made in the U.S., you're free to resell it. But suppose you buy a German car or a Japanese car. Are you prevented from reselling it here? And on and on for thousands of products.
BREYER: That answer to that question will effect $3 trillion worth of commerce - 3 trillion. That's why there were lawyers in the case from Britain, from the Netherlands, from all over the place because to answer that correctly is a matter of American statutory law. We had to know something about the copyright laws and practices of publishers and others outside the United States. To know whether you're creating chaos in a world of international commerce, you have to know something beyond our own borders.
TOTENBERG: Or, Breyer says, look at treaties and the subjects they cover. The first few American presidents signed just one or two a year. Today, that number has grown by a factor of 10. That's not surprising, he says, because ordinary travel, communications, business dealings and even family relationships routinely take place across national borders. The Supreme Court in recent years, for instance, has dealt with three cases interpreting the international treaty on child abduction.
BREYER: Why are federal judges who know very little about domestic relations deciding this? Because it's in a treaty. Why is it in a treaty? Because domestic relations today - more and more - involves marriages of people from different countries.
TOTENBERG: What's more, many treaties delegate rule-making power to international bodies to enforce treaties involving trade, the environment, chemical weapons, air travel and many other subjects.
BREYER: There's even something called, I think, the international olive oil commission. I'm not quite positive what that they do with olive oil, but my guess is they set standards.
TOTENBERG: If there's an overarching question in his book, Breyer says, it is this. To what extent may Congress delegate its legislative authority through treaty and statute? If there are no limits, then what has become of the constitutional provision giving Congress the power to make all laws? But if you say no, no, no, Congress can't ever delegate its power through a treaty...
BREYER: Well then how do we get our international problems solved? The world will go on without us, and we will be subject in many unpleasant ways to whatever they come up with, without having any word whatsoever in its creation.
TOTENBERG: Hammering out solutions is not easy, Breyer admits. But no branch of government can avoid dealing with global issues anymore. Even a divided Supreme Court agrees on that.
BREYER: What we're trying to do is make certain that we protect basic values such as democracy, human rights, rule of law.
TOTENBERG: Supreme Court Justice Stephen Breyer on his new book "The Court And The World: American Law And The New Global Realities." Nina Totenberg, NPR News, Washington.
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