The recent passing of Justice Antonin Scalia gives rise to the following three thoughts.
First, before he was a judge and justice, he was a husband and father, and our condolences go out to his family.
Second, he was a greater friend to international law and the international practitioner than he is often given credit for. His antipathy to the Court turning to foreign law in Lawrence v. Texas (anti-sodomy law,) Thompson v. Oklahoma (death penalty) and Sosa v. Alvarez -Machain (Alien Torts Act) to develop an interpretation of U.S. Law is well known.
However, where the case truly presented a question of international law, he was not only opened to using international law, but required it. Thus, in Olympic Airway v. Husain, the question arose whether the refusal of a flight attendant to move an asthmatic passenger to the non-smoking section, leading to his death, was an “accident” within the meaning of the Warsaw Convention, to which the United States is a signatory. (If it were an accident, the survivors would have certain rights in a claim brought under the Convention.) While the majority of the Court held that such an event was not and “accident” under the Warsaw Convention, Justice Scalia forcefully argued that the courts of both the United Kingdom and Australia have already held that such an event is an accident, and the Court’s interpretation of the Warsaw Convention should be consistent with the the interpretation of these foreign courts. Furthermore, in Spector v. Norwegian Cruise Line, Ltd. Justice Scalia argued in his dissent that the Americans with Disabilities Act must be understood in a way consistent with the well established doctrine that the law of a ship’s flag is the law of the ship.
Justice Scalia understood the difference between foreign law and international law. Foreign law, that is, the law of other countries, he held, has no place, in interpreting U.S. Laws, democratically enacted and legitimate for that reason alone. However, with respect to international law, that is, the body of law binding on many nations, whether by treaty, as in the Warsaw Convention, or by practice, as with maritime law, the U.S. Courts must interpret their obligations in a manner consistent with the courts of other nations that share those international obligations with the the United States. Those who would rely on foreign law to interpret U.S. law conflate the two, foreign law and international law, coming to view international law as simply the sum of the laws of the various nations. But for Scalia, the distinction must maintained, and intellectual clarity demands that foreign law must not be transmuted into international law.
The distinction between foreign law, the local or national laws of various states, and international law, the obligations and rights of those states with respect to other states, is something that every international practitioner should bear in mind.
Third, choosing the successor to Justice Scalia has become a big political hullabloo, lacking any sense of intellectual rigor. Indeed, there are great political agendas at stake. But, we would do well realize that Justice Scalia, who valued every word of our written Constitution, would probably remind us that Article II states that the president “shall appoint . . . Judges of the supreme Court.” He might not like the results, but I can think of no more fitting tribute to his memory, than to follow the words of the Constitution, no matter what the outcomes might be.