Does the U.S. Constitution grant the American president unlimited executive powers during a state of emergency? How should the Supreme Court balance competing constitutional interests, security needs, and civil liberties in an age of state surveillance and global terrorism? And, finally, should the court uphold the Constitution without regard to foreign legal trends and institutions, or should it become progressively more open to developments and ideational influences from abroad? Justice Stephen Breyer dedicates his formidable new book to these and other questions about the evolving role of domestic courts under an increasingly transnational judicial system. Some of the topics he considers include the court's ability to review presidential and congressional actions in order to safeguard individual liberties and constitutional rights; its role in treaty interpretation and harmonization, and in clarifying the reach and extent to which the U.S. Constitution guarantees protections abroad; the admissibility of cases brought by foreign litigants under the Alien Tort Statute in seeking remuneration for human rights violations committed outside of the United States; the constitutionality of Guantanamo Bay cases arbitrated in military tribunals and their repercussions for state secrecy, executive privilege, and presidential wartime authority; and the growth of an interdependent “world of laws” and its relation to such transnational problems as environmental risks, financial insecurity, and terrorism.
Breyer argues that the court cannot afford to remain oblivious to developments from abroad and ignorant of the legal traditions and interpretations of foreign judicial bodies concerning today's most consequential issues. If the court disregards the global political, social, and economic milieu within which it is inevitably situated and with which it finds itself confronted on a daily basis, it will risk endangering the prestige and soft power of the rule of law and will render itself immaterial in the transnational legal dialogue. Consequently, Breyer believes the court must become more attuned to the dynamic nature of a new global legal order—an order that is itself enhanced by the United States' rich constitutional tradition of inalienable rights and equality under the law. It is this conception of the rule of law, he writes, that will ensure that the court remains a vital organ in building and sustaining a democratic, humane, and just society at home and a more just international order abroad.
