Foreign Legal Issues Can Inform U.S. Courts, Breyer Says

American courts should pay attention to foreign countries’ legal interpretations and challenges, U.S. Supreme Court Associate Justice Stephen G. Breyer argued at the Kennedy School of Government on Friday.

Although some people might reasonably be worried about undermining American values and American sovereignty in considering decisions of foreign courts, Breyer said the success of the American democratic experiment depended on the United States’ ability to look beyond its shores.

“The best way to preserve American values is to try help deal with these problems, and that requires a little participation and at least knowledge about what’s going on outside our own boundaries,” said Breyer, a former professor at Harvard Law School and the Kennedy School.

A particular challenge for courts, Breyer added, is understanding how legal interpretations of similar statutes or systems in different countries conflict with one another, especially around issues of human rights.

“There’s got to be a system that works. It has to be uniform, and it has to be at least capable of harmony rather than just chaos,” Breyer said. “Now those are interpretative problems, and you cannot deal with those problems...without knowing what other countries are doing.”

Breyer gave his remarks at a John F. Kennedy Jr. Forum event at the Institute of Politics Friday afternoon, moderated by Kennedy School professor David R. Gergen and Law School lecturer Nancy Gertner.

When asked about his role in the creation of the Federal Sentencing Guidelines as part of the Federal Sentencing Commision in the late 1980s, Breyer said if given the choice, he would still re-implement the guidelines, despite their unpopularity.

“Study after study showed that the sentence was pretty dependent on whom you drew as the judge—that’s why they had to have a lottery wheel in the Southern district of New York,” Breyer said of the criminal justice system before the guidelines were enacted. “This was meant to be a movement—not perfection, but a movement—in the direction of focus on the individual…and [a] move to uniformity—if I had to do it over again, I think I’d do it.”

The moderators also asked Breyer to explain why he joined a dissenting opinion on the controversial Citizens United vs. Federal Election Commission case. Breyer said that while he understood that money was inherently tied to speech in political campaigns, the ability—or at least potential—of very wealthy individuals to disrupt the connection between public opinion and the policymaking of elected officials and bodies was also a concerning First Amendment issue.

“When you have five people giving 20 million dollars each...and you have hundreds of millions giving 10 dollars each, it’s the big givers who will cut that connection” between the public and policy-making, he said. “Even if it weren’t true, people would think it was true and as long as they think it is true, there will not be any faith, necessary faith, in that institution.”