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The twenty-first century's first decade was an extraordinarily active one for international law in the Supreme Court, with the Court issuing more than thirty decisions implicating international law. Many of these decisions came in high-profile cases, and many made important contributions to the Court's jurisprudence. In Sanchez-Llamas v. Oregon and Medellin v. Texas, the Court considered the domestic legal status of treaties and the domestic effects of decisions by the International Court of Justice. It considered the federal judiciary's role in applying customary international law under the Alien Tort Statute in Sosa v. Alvarez-Machain. In a series of cases including Lawrence v. Texas, Roper v. Simmons, and Graham v. Florida, it turned in part to international law and foreign practice to decide the scope of domestic constitutional rights. In F. Hoffman-La Roche Ltd. v. Empagran S.A., Morrison v. National Australia Bank Ltd., and other cases, it used principles originally rooted in international law to constrain the global reach of federal statutes. And in prominent cases arising in the aftermath of the September 11, 2001 terrorist attacks, the Court grappled with questions of individual rights and separation of powers in a new kind of international warfare.
Many of these decisions were deeply controversial, provoking strong dissents from Justices not in the majority and strong criticism from academic and political commentators. Critics and supporters often differed sharply as to whether the Court's decisions were faithful to or a radical departure from prior precedents.
The first decade of the twenty-first century was a busy one for international law in the U.S. Supreme Court. The essays in Part V address the Court's most significant decisions during this period under five headings: (1) treaties, (2) customary international law, (3) constitutional interpretation, (4) statutory interpretation, and (5) the war on terror. Because these decisions are so recent, Part V addresses them differently – with shorter and more opinionated essays. This introductory note provides a brief overview of the decade's international cases under each of these headings. The essays that follow give more detailed accounts, opinions, and analyses regarding the leading cases.
Treaties after 2000
The Court most starkly confronted the role of treaties in two 2006 cases – Sanchez-Llamas v. Oregon and its companion case Bustillo v. Johnson – and in Medellin v. Texas two years later. All three cases involved individuals who were convicted of criminal offenses after state governments violated the provision of the Vienna Convention on Consular Relations (VCCR) mandating that foreign nationals arrested in the United States shall have the opportunity to speak with their nation's consulate. State law enforcement in the United States routinely failed to grant this right, a matter that first came to the Court at the end of the twentieth century in Breard v. Greene. But the significance of the issue escalated in 2004 when the International Court of Justice (ICJ) found, in the Avena case, that violations of the VCCR required defendants' sentences and convictions to be revisited and that procedural defaults under domestic law should not stand in the way.
This chapter describes the U.S. Supreme Court's use of international law as an interpretive tool in statutory and constitutional interpretation cases from 1861 to 1900. Part I discusses the Court's use of international law in statutory interpretation cases. Part II examines the role that international law played in the Court's constitutional decisions. Part III discusses the role of international law in the evolution of foreign, federal, and state sovereign immunity doctrines during this period. Part IV addresses overarching themes that emerge from the analysis in the first three parts.
International Law and Statutory Interpretation
Part I surveys the Supreme Court's use of international law as an aid to statutory interpretation in cases decided between 1861 and 1900. The analysis is divided into three sections. The first section addresses the Court's approach in cases implicating the application of congressional enactments outside the United States. In these cases, the Court often invoked international law to help justify the extraterritorial application of federal statutes. Surprisingly, the Court did not decide any cases during this period in which it applied international law to constrain the extraterritorial application of federal statutes, although it had some opportunities to do so.
The next two sections analyze how the Court resolved apparent conflicts between statutes and the unwritten law of nations, and between statutes and treaties, respectively. The analysis demonstrates that in statutory interpretation cases during this period the Court generally construed statutes to avoid conflicts with international law.