Judges as Diplomats in Advancing the Rule of Law: A Conversation with President Koen Lenaerts and Justice Stephen Breyer

American University Law Review, January 1, 2017 | Go to article overview

Judges as Diplomats in Advancing the Rule of Law: A Conversation with President Koen Lenaerts and Justice Stephen Breyer


INTRODUCTION

On both sides of the Atlantic, Western countries have taken a wellpublicized and perhaps poorly understood turn toward leaders espousing extremist, xenophobic, and introspective politics that threaten the core tenets of liberal democracy. Electorates appear divided and confused as political leadership in Europe and the U.S. take measures that undermine the basic principles of the rule of law and human rights. Above all else, the designated defenders of the constitutional order, the supreme courts, have come under direct political attack in countries such as Hungary and Poland. Even in traditional bastions of Western democracy, like the United States and the United Kingdom, judicial appointments and decision making have come under intense public and political scrutiny.

Against this backdrop, the Supreme Court of the United States and the Court of Justice of the European Union have begun institutionalizing regular meetings, under the auspices of the Luxembourg Forum, to "facilitate dialogue and increase mutual understanding between the two judicial systems at a time of increased globalization." Very little is known or understood about the existence and functioning of the Luxembourg Forum and what impact, if any, this form of judicial diplomacy actually has on fostering liberal democratic values through a common and comparative constitutional discourse. What inspired the courts to institutionalize their previously informal diplomacy, and what do they hope to achieve? What impact does the Forum have on the legal communities and the practice and teaching of law outside of the courtrooms of Luxembourg and Washington, D.C.? To what extent might the courts improve judicial decision making and strengthen the rule of law and human rights through engagement with foreign law and practices of equivalent foreign courts within a politically recalcitrant environment?

In the aftermath of the second official Luxembourg Forum and the visit of a delegation of the Court of Justice of the European Union to the U.S. Supreme Court, American University convened a workshop with judges, legal scholars, social scientists, students, and practitioners to expand and increase among all workshop participants the value of this Forum: to enhance constitutional decision making and strengthen the rule of law and fundamental rights across the Atlantic.

The significance of this inter-court dialogue and the use of foreign law and practice in domestic courts is a hotly contested issue at a time when the reaffirmation of national sovereignty through the rise of extremist values and political and economic introspection are in the ascendency. Famously, just over a decade ago, Justices Stephen Breyer and Antonin Scalia debated the use of foreign law by the U.S. Supreme Court, with Scalia's more insular approach seemingly winning the day despite the opposing preferences of other Justices, such as Breyer, Ginsburg, and Kennedy. Since then, Justice Breyer has restated the case for the judge to also be a "diplomat" and to learn from foreign legal ideas, particularly the European constitutional concept of proportionality when adjudicating on the First Amendment. In a similar way, the members of the Court of Justice of the European Union have also struggled with the use of foreign legal norms given the more precarious nature of its jurisdiction vis-â-vis twenty-eight member states. In fact, no direct citation to the U.S. Supreme Court appears in the judgments of the Court ofJustice of the European Union even though some opinions of its Advocates General occasionally cite to U.S. jurisprudence. This is in sharp contrast from the other regional European court, the European Court of Human Rights based in Strasbourg, which openly cites the U.S. Supreme Court in its decisions.

The lack of this overt kind of influence of the U.S. Supreme Court on the Court ofJustice of the European Union and vice-versa does not necessarily mean that they do not employ similar ideas and modes of reasoning. …

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