A Prediction on Sotomayor’s Use of International Law

August 12, 2009
Guest Post

By Erin Louise Palmer, Clerk, D.C. Court of Appeals & 2009 ACS Public Interest Fellow 

On the third day of her confirmation hearings, then-Judge Sonia Sotomayor faced pointed questioning on her views on using international law in U.S. courts. She responded that:

[F]oreign law cannot be used as a holding or a precedent, or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law .... [T]he American legal system was structured not to use foreign law; it repeatedly underscored that foreign law could not be used as a holding, as precedent or to interpret the Constitution or the statutes.

She went on to say that although judges should not use international law "in the sense of compelling a result," international law serves to "build up a story of knowledge about legal thinking, about approaches that one might consider."  

A review of Second Circuit decisions written by Justice Sotomayor, or for which she was on the panel of judges who decided the case, elucidates her views on the use of international law in U.S. courts.

Justice Sotomayor avoided international law issues when able to decide the case on another ground. For example, in Center for Reproductive Law and Policy v. Bush, a case involving a challenge to the constitutionality of a U.S. government policy requiring foreign non-governmental organizations to agree not to perform or promote abortions as a condition of receiving government funds, Sotomayor dismissed without addressing the viability of a claim based on customary international law.

When confronted with an international law issue that the court must decide, Justice Sotomayor has been unequivocal in stating that the Constitution reigns supreme. In her opinion in United States v. Ni Fa Yi, a case involving a prosecution for hostage taking under the Hostage Taking Act, an act similar to the Hostage Taking Convention, she cited language from another case that "no agreement with a foreign nation can confer power on the Congress, or on any branch of Government, which is free from the constraints of the Constitution."

In addition, Juustice Sotomayor defers to Congress on issues of international law. In Zheng v. Department of Justice, a summary order not selected for publication in the Federal Reporter, the court denied an individual's petition for review of an order of the Board of Immigration Appeals as untimely filed. In addressing Zheng's argument that his deportation would violate the international law principle of family unity, the order emphasized that Congress had clearly imposed a ninety-day deadline that precluded Zheng's petition for review. Citing another Second Circuit decision, the court noted, "if a statute makes plain Congress's intent, then Article III courts must enforce the intent of Congress irrespective of whether the statute conforms to customary international law." This order conforms with the less frequently quoted statement in Sotomayor's speech to the ACLU that "the use of foreign and international law in the American judicial system holds very limited formal force" that comes into play "only when there is goodwill on the part of the president and on Congress in respecting the obligations under those treaties and commitments." 

Juustice Sotomayor even deferred to Congress on controversial issues. In re Air Crash off Long Island, New York, on July 17, 1996, involved the tragic crash of TWA flight 800 and whether a statute limiting recovery to pecuniary losses applied. In her determination that the statute applied and that nonpecuniary losses should not be available Sotomayor wrote, "When interpreting a domestic statute ..., we should not incorporate international concepts of territorial and high seas unless Congress specifically intended to import those concepts into the statute." Addressing this dissent at her confirmation hearings, Sotomayor said that a "personal sense of regret . . . can't command a result in a case." 

Justice Sotomayor has cited decisions from other tribunals only in limited circumstances. In Croll v. Croll, Sotomayor dissented on the issue of whether a child removed from Hong Kong in violation of a court order must be returned to Hong Kong under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act. Sotomayor disagreed with the majority on whether the Hong Kong custody order conferred a right of custody within the meaning of the Convention. She noted that decisions of foreign courts, although "not essential to [her] conclusion," were consistent with her conclusion.

A review of these cases shows that Justice Sotomayor will generally avoid international law issues, if possible, always hold paramount the Constitution and acts of Congress, and likely only consider international decisions when interpreting an international convention or as secondary support for her conclusions. Far from "demonstrat[ing] a propensity to rule with purpose-driven results ... [based on] a particular interest in international standards or laws" or "[c]herry-picking desirable [international] law," Justice Sotomayor has cited international law minimally and never relied on it exclusively.