Okay, one last thought on the Water Splash case, which is being argued tomorrow. My skill at prediction has proved poor again this year during the NCAA tournament, but maybe I can do a little better in predicting the outcome of this case. After all, there are at most nine possible vote totals in the case, while there are 9,223,372,036,854,775,808 possible basketball brackets!
I am going to be bold and predict that the petitioner will win, 8-0. I recently read an interview with Justice Breyer, who was asked why he had written his book, The Court and the World:
I can’t tell you at what time, but I suddenly began to realize that the number of cases in which, in order to decide them correctly or reasonably, you have to know something about what’s going on abroad was growing rapidly. When I first came to the Court, you hardly saw such a case. They existed, but there weren’t too many.
I would say, when I started writing the book, there probably were 15 or 20 percent, perhaps. That’s a lot. And these are cases where you must know what’s going on beyond the borders. And for the most part, it is not controversial. If you involve a treaty, you have to know how other countries are interpreting the treaty in order to have a sensible interpretation yourself. There’s unanimity in this Court on that statement that I just made.
Perhaps Justice Breyer paints too rosy a picture of the unanimity on the Court? Perhaps some justices don’t think it important to know how other countries construe a treaty? I will make a crude generalization and assume that if there are justices like that, they are on the Court’s right wing. Let’s look at Justices Thomas and Alito in particular. In Hamdan v. Rumsfeld, 548 U.S. 557, 719 (2006), where the majority rejected the Executive’s construction of Common Article 3 of the Geneva Convention, Justice Thomas’s dissent argued:
Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision (“not of an international character”) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation.
And in his confirmation hearing, Justice Alito, in speaking about foreign law, had the following dialogue with Senator Kyl:
Senator Kyl: What is the proper role, in your view, of foreign law in U.S. Supreme Court decisions, and when, if ever, is citation to or reliance on these foreign laws appropriate?
Judge Alito: … We have our own law, we have our own traditions, we have our own precedents, and we should look to that in interpreting our Constitution. There are other legal issues that come up in which I think it is legitimate to look to foreign law. For example, if a question comes up concerning the interpretation of a treaty that has been entered into by many countries, I don’t see anything wrong with seeing the way the treaty has been interpreted in other countries. I wouldn’t say that that is controlling, but it is something that is useful to look to.
Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 371 (2006).
Bottom line: since I think that the petitioner’s reading of Article 10(a) is at least a permissible reading, and since it is the reading of all the other parties to the Convention and of the Executive Branch, I can’t identify any justice who should be inclined to rule in the respondent’s favor. Hence my bold prediction.