Phyllis Schlafly has been leading the charge against “judicial supremacy,” including what she considers the unconstitutional encroachment of foreign law onto U.S. Supreme Court decisions. I have similar concerns, but I find Schlafly’s presentation of the argument in her syndicated column contains two misleading examples.The first example is a not-so-subtle attempt to revive the fear of communism:
The Supreme Court recently accepted amicus briefs from Mikhail Gorbachev and from 48 foreign countries in a case considered this fall involving the death penalty for juveniles, Roper v. Simmons. You read that right; the High Court is listening to Gorbachev’s opinion about what U.S. criminal law should be!
The Supreme Court generally accepts amicus curiae briefs from any party that chooses to file them. In highly controversial cases, such as the Michigan affirmative action appeal, the Court can receive upwards of 100 such briefs. Most of these briefs are never read by the justices, and many are afforded little more than a cursory glance by the justices’ law clerks, as such briefs tend to be highly repetitive. I have authored several amicus briefs to the Court, and I am quite certain they did not affect the outcome. It’s unlikely Gorbachev’s views on the death penalty will prove decisive.
Schlafly’s second example omits context, something conservatives seem to have become quite adept at in the Bush era:
Earlier this year, the Supreme Court allowed the Commission of the European Communities for the first time in history to present oral argument as a friend of the Court. This foreign governmental body was not even a party in the dispute between Intel and Advanced Micro Devices, yet the justices granted it a special right to argue that is rarely conferred even on American entities.
From this description, it’s not clear why the European Communities was invited to participate in the argument. Having followed and reported on this case myself, I can fill in the missing links:
Since the 1850s, federal law has authorized American courts to compel the testimony of witnesses for use in foreign judicial proceedings. The current version of this rule, 28 U.S.C. § 1782, says a district court “may” order testimony or document discovery “for use in a proceeding in a foreign or international tribunal . . . upon the application of any interested person.”Intel and Advanced Micro Devices (AMD) are well-known competitors in the microprocessor industry. AMD believed that Intel had violated European Union antitrust law by through acts of price discrimination, illegal rebates, exclusive arrangements with customers, and other abuses of its “dominant position.” Under the EU’s governing treaties, any party may file an antitrust complaint with the Commission of the European Communities, the EU’s executive branch. AMD filed such a complaint with the Commission’s Directorate-General of Competition (DGC).
The DGC has exclusive authority to investigate antitrust complaints and issue an administrative decision through the Commission. If the DGC decides a complaint has merit, it then issues a Statement of Objections, and the respondent is afforded the right to a closed-door hearing. This is not a judicial proceeding, however, but rather a private meeting between the respondent’s representatives and the DGC. Only after this hearing does the DGC, through the Commission, issue an administrative decision. A respondent can then seek judicial review of the Commission’s action with the European Court of First Instance and the European Court of Justice. The party filing the complaint also has a limited right to seek review in the Court of First Instance if the DGC decides not to conduct a full investigation.
In January 2001, the DGC, acting on AMD’s complaint, directed Intel to produce documents and answer questions related to AMD’s charges. Intel was later given a partial copy of AMD’s complaint and told to file a formal answer. AMD also made additional submissions to the DGC. Intel and AMD never shared their respective DGC filings with one another, however.
AMD encouraged the DGC to conduct discovery in the United States under §1782. When the DGC declined to do so, AMD filed its own §1782 request with a federal court in California, seeking roughly 600,000 pages of documents from Intel. The district court refused to issue the order, agreeing with Intel that a preliminary investigation before a prosecutorial agency did not constitute a “proceeding in a foreign or international tribunal,” as required by the statute.
AMD, joined by the Bush Justice Department, argued before the Supreme Court that private plaintiffs had the right to seek discovery in U.S. courts on behalf of a foreign government even when the foreign government objected. The EU appeared at oral argument to rebuff the U.S. government’s attempt to obstruct and redefine the terms of an EU antitrust investigation. That is hardly a sinister plot to undermine the U.S. Constitution via international law.
In fact, antitrust is a good example of the U.S. government’s imperialist approach towards foreign judicial systems. The Bush administration’s antitrust regulators have strongly promoted the work of the International Competition Network, a cross-governmental agency that promotes the spread of U.S.-style antitrust laws to developing countries. The ICN’s membership includes such devotees of free markets as Hugo Chavez’s Venezuela and Vladimir Putin’s Russian Federation. U.S. officials have been the ICN’s biggest backers; FTC and DOJ officials have even gone to China to advise the Communist government there on how to implement new antitrust laws that U.S. business groups say will be inevitably targeted against “foreign”—i.e. American—firms in the country. (A Wall Street Journal op-ed earlier this year also accused the State Department of pressuring a government official in Ecuador to drop his strenuous objections to a proposed antitrust law in that country.)
I do think Schlafly’s concern about the use of foreign law to interpret American law is valid. As she correctly points out, when Sandra Day O’Connor talks about incorporating foreign law, the justice is only referring to the laws of certain countries preferred by the legal-academic establishment (i.e. Europe rather than, say, India.) But Schlafly errs in ascribing to judges the principal responsibility for the decline of the American constitutional system. That dishonor belongs not to “activist” judges, but rather imperialist regulators in the executive branch, whose thirst for political power—in this nation and abroad—have abandoned any pretense of the “rule of law” in favor of perpetual gang warfare.
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I am reminded of a long forgotten phrase called “jury nullifcation”
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