Having annexed Crimea as well as swaths of eastern Ukraine and Georgia, Russian strongman Vladimir Putin casts a menacing eye at the Baltics. His new favorite ally, Iran, violated President Obama’s ballyhooed nuclear arms deal before the ink was dry, testing a new class of intermediate-range ballistic missiles designed to be tipped with the very nuclear warheads the mullahs deny coveting. Meanwhile, China flouts international law by constructing artificial islands to bolster its aggressive South China Sea territorial claims. In Europe, a Middle Eastern diaspora wreaks havoc on the continent, exploiting its generous laws on immigration and travel between countries while overrunning communities with Muslim settlers notoriously resistant to Western assimilation.
Rarely in modern history has the inadequacy of law to manage the jungle that is international relations been more starkly illustrated. Yet, according to the United States Supreme Court Justice Stephen Breyer, it is precisely law, as divined by judges, that can tame our tempestuous times. That the judiciary is the institution least competent and least politically accountable for the task is evidently no more an obstacle than the impotence of law itself.
Appointed to the High Court by President Bill Clinton twenty-one years ago, Justice Breyer has been a stalwart liberal—which is to say, a political “progressive” on a court that is increasingly political. He is refreshing nonetheless, even for those of us who recoil from his ideological bent, for his willingness to depart from the Court’s custom of avoiding public debate. Like his colleague and philosophical counterpart Justice Antonin Scalia, Breyer is a frequent public speaker and occasional author on jurisprudential approaches to contemporary challenges. His newest book is The Court and the World: American Law and the New Global Realities.1
The work has much in common with Active Liberty, Breyer’s offering of a decade ago, which the Hoover Institute scholar Peter Berkowitz perceptively pegged as a rationalization of “judicial willfulness masquerading as judicial deference” to democratic self-determination. The Court and the World is similarly a call for judicial supremacy, this time under the guise of international “interdependence.” The courts are once again pitched as an enabling agent of democratic choice, but on a supra-national scale.
The world, though, is a very undemocratic place—though perhaps no more undemocratic than Supreme Court diktats that remove controversies like abortion and “same-sex marriage” from democratic resolution.
How to explain the difference between progressive pretensions to “activate” liberty—i.e., to vouchsafe “the right of all persons to enjoy liberty as we learn its meaning,” as Justice Anthony Kennedy vaporously put it in imposing same-sex marriage on the nation—and progressive judging’s actual affect of curtailing our freedom to live as we choose? This inversion of democracy, it turns out, flows naturally from Breyer’s inversion of the judicial role—a philosophy of judging shared by a working majority of his Court, the bloc of five unelected jurists whose edicts control ever more of what was once democratic space.
“[O]ur American judicial system,” he contends, should “see itself as one part of a transnational or multinational judicial enterprise.” Inconveniently (but, alas, not insuperably), the only “judicial enterprise” licensed by the Constitution, from which federal judges derive their authority, is the protection of Americans from overreach by our government and the remediation of other harms inflicted by third parties in violation of laws enacted by our elected representatives.
Interpreting the law as written—an intellectual challenge that is vital to the rule of law even if not sufficiently stimulating for many a robed social engineer—is not so much an enterprise as a discipline. In our system, it is supposed to be the politically accountable branches that get to do the enterprising. Nor does the discipline of judging take on a “transnational or multinational” character merely because some small percentage of the parties implicated in legal disputes is of foreign extraction—even if, as Breyer rightly observes, modern technology has made the percentage larger by making the world smaller.
What does Breyer see as the objective of this global judicial enterprise? The advancement of “acceptance of the rule of law itself.” This “rule of law,” you’ll no doubt be shocked to learn, bears an astonishing resemblance to the rule of lawyers—in particular, the judges along with the army of equally unelected transnational progressive lawyers who urge them on.
