May 2005, Volume 91, Issue 3
A Forest with No Trees: The Supreme Court and International Law in the 2003 Term
by John K. Setear
91 Va. L. Rev. 579 (2005)
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The Supreme Court's docket in the 2003-2004 term included five cases directly presenting questions of international law. Republic of Austria v. Altmann raised issues of the international law of expropriation and the immunity of foreign sovereigns. Sosa v. Alvarez-Machain concerned a statute authorizing suits to redress "a tort . . . committed in violation of the law of nations." Rumsfeld v. Padilla, Hamdi v. Rumsfeld, and Rasul v. Bush concerned the status of individuals taken prisoner in the war on terror, thereby raising the subject of that best-known of all international agreements, the Geneva Convention.
The thesis of this Article is that, despite the direct relevance of international law to these cases, the Court repeatedly ignored international law and, when faced with no plausible way to ignore international law, took a highly constricted approach to its application. The Article argues that the Court decided three of the five cases—Altmann, Padilla, and Hamdi—without resolving any substantive international legal questions. In Rasul, the Article asserts, the Court ignored the Geneva Convention, although it did take a pragmatic, control-oriented view of what constituted "sovereignty." Even in Sosa, where the statute's plain language—giving federal courts jurisdiction over suits for a "tort, committed in violation of the law of nations"—unavoidably required some attention to international law, the Court repeatedly took a constricted reading of the meaning and relevance of international law, both by ignoring the importance of treaties to the statutory scheme (and history) and by repeatedly limiting the scope of the customary "law of nations." In all five cases, the Court focused on purely procedural issues and on statutory interpretation instead of on international law.
A concluding section of the Article speculates that the Court downplayed international legal issues not for fear of public, legislative, or executive backlash, but rather because the Court simply is more comfortable with traditional methods of statutory and originalist interpretation than it is with the unfamiliar, decentralized world of international law.
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