A justice’s international view
When the Supreme Court goes on recess at the end of this month, Justice Anthony M. Kennedy will be off to his summer teaching job in Salzburg, Austria. For the 19th year, he will teach a class called “Fundamental Rights in Europe and the United States” for the McGeorge Law School.
He tells his American and European students that the belief in individual freedom and the respect for human dignity transcends national borders. There is, he once said in an interview, “some underlying common shared aspiration” in legal systems that protects the rights and liberties of all.
That international perspective was on display Thursday as Kennedy spoke for the Supreme Court in extending legal rights to the foreign military prisoners held at Guantanamo Bay, Cuba. “Security subsists too in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers,” Kennedy said.
The 5-4 ruling highlighted the sharp divide over the law and the war on terrorism. The dissenters, agreeing with the Bush administration, said foreigners captured abroad in the war on terrorism had no rights in American courts.
Justice Antonin Scalia dissented with the decision “to extend the right of habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.” The ruling “warps our Constitution,” he wrote in his dissent.
The majority, led by Kennedy, was more in tune with the views across Europe and of civil libertarians in this country, who have condemned the prison at Guantanamo Bay as a “legal black hole” where foreigners are shackled and held in harsh conditions without due process of law. The justices in the majority said that when U.S. authorities take someone into custody, they must offer them the basic legal protections, including the right to plead for their freedom before an independent judge.
In recent years, Kennedy, 71, has become one of the strongest proponents of interpreting the Constitution’s guarantees of liberty and equality broadly and in line with modern human rights law. Thursday’s opinion made no direct reference to international law, but Kennedy had no trouble concluding that the Constitution’s protections for habeas corpus -- or the right to go before a judge -- were not limited to Americans or U.S. territory.
He cited cases from 1700s in which Spanish sailors and African slaves went before judges in England to seek their freedom through a writ of habeas corpus. Kennedy drew the lesson that in England, as well as in America, the right to go before a judge was not limited to the nation’s citizens.
Columbia University law professor Michael Dorf, a former Kennedy clerk, said the Guantanamo opinion was “undoubtedly influenced by his international perspective. It broadly reflects his sense that this is what is required of a civilized country, one that respects the rule of law.”
Since World War II and the aftermath of Nazism and the Holocaust, lawyers and judges have come to believe the basic principles of human rights are common to the peoples of world, that they are not unique to a few nations and their laws. Kennedy’s opinion is “entirely in line with post-World War II human rights law,” Dorf said. “One principle is you don’t detain people without a trial.”
Kennedy has plenty of critics, however, including his more conservative colleagues on the Supreme Court. They say he is wrongly reading international principles into the U.S. Constitution. Chief Justice John G. Roberts Jr. lauded the “majesty” of the “Great Writ” of habeas corpus, but he questioned extending it to a “jurisdictionally quirky outpost” like Guantanamo.
Kennedy’s opinion is “a kind of judicial cosmopolitanism that is alien to the very notion of a national Constitution,” said Edward Whelan III, a former Scalia clerk who heads the Ethics and Public Policy Center in Washington. “This was a classic Kennedy, and I don’t mean that as a compliment. It is full of airy abstractions and fuzzy notions. His legal outlook is that the Constitution needs to be redefined in accord with international norms.”
No one predicted 20 years ago that Kennedy would be a leader of the court’s internationalists when President Reagan named him to the high court. A Sacramento native, Kennedy used to joke that he owed his cosmopolitan outlook to having lived nearly his entire life in California’s capital.
In his early years on the court, he was seen as a moderate conservative. He voted to uphold the death penalty and to restrict abortion and affirmative action.
But he also espoused an idealistic view of the law -- sometimes in ways that surprised longtime friends. In 1992, he played a key role in preserving the constitutional right to abortion, even though Kennedy said he was personally opposed to abortion.
In 2005, he spoke for a 5-4 majority in abolishing executions for murderers younger than 18 at the time of the crime. Under the standards of the nation and the world, imposing the death penalty on young murderers is cruel and unusual punishment, he said.
“It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty. . . .” he wrote in Roper vs. Simmons. “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”
Kennedy came under sharp criticism from Republicans on Capitol Hill for that opinion. They talked of impeaching justices who rely on foreign law as a basis for their decisions.
Kennedy was not speaking for himself alone Thursday.
Justice John Paul Stevens, a World War II veteran, also has argued that American law must deal fairly with enemies as well as friends. He wrote a 2006 opinion, along with Kennedy, which held that basic protections of the Geneva Convention extend to those who are captured and imprisoned during the war on terrorism.
Joining them in the majority Thursday were Justices Stephen G. Breyer and Ruth Bader Ginsburg. They travel widely and meet often with foreign judges and international legal groups. They too say American law should follow the basic norms of international human rights law.
Justice David H. Souter’s summer travel usually consists of driving home to New Hampshire. He avoids judicial conferences and nearly all requests to speak to legal gatherings. But he has regularly joined Kennedy and the others, as he did Thursday.
In a brief opinion to challenge Scalia’s heated denunciation, Souter wrote: “The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the crown and now of the executive branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention.”