Is Chief Justice Roberts a Transnationalist, After All?
posted by Melissa Waters
John Parry at Lewis & Clark has put together a terrific symposium on the Supreme Court’s decision last Term in Sanchez-Llamas v. Oregon, available here. In Sanchez-Llamas, the Court considered the extent to which foreign nationals have judicially enforceable rights and remedies for violations of Article 36 of the Vienna Convention on Consular Relations. Article 36, the so-called “consular notification” provision, requires that foreign nationals arrested by the police be notified of their right to contact their country’s consulate. Sanchez-Llamas and another petitioner, Bustillo, had not been notified of their Article 36 rights upon arrest. Sanchez-Llamas argued that the appropriate remedy for the treaty violation was suppression of incriminating statements taken during his interrogation, on the ground that they had been obtained in violation of Article 36. In Bustillo’s case, the issue was whether a state could apply its procedural default rules to Article 36 violations, despite a ruling to the contrary by the International Court of Justice. Chief Justice Roberts, writing for the majority, ruled against the petitioners on both issues.
Contributors to the symposium explore a wide variety of issues raised by the Court’s decision. Julian Ku suggests that Sanchez-Llamas represents a serious setback to the “burgeoning movement” toward domestic court enforcement of international tribunal decisions. Janet Koven Levit, on the other hand, offers a “glass half full” take, arguing that “a multitude of judicial and non-judicial actors have helped entrench Vienna Convention rights over the past decade, … and the Court did little to stymie or disrupt these constitutive processes.” Peggy McGuinness offers an intriguing take on Sanchez-Llamas as part of the ongoing debate regarding American human rights exceptionalism, “and how judges—implicitly and explicitly—respond to arguments for and against exceptionalism.” Paul Stephan explores a key issue left unresolved by the Court — when a private individual may invoke a treaty provision before a U.S. court. He argues that in addressing the issue, “the Court should enlist the techniques it uses to determine when private litigants may invoke legislative enactments.”
My own contribution to the symposium argues that Sanchez-Llamas reveals the Chief Justice in a new light: Far from a knee-jerk “nationalist” with respect to judicial dialogue with foreign and international courts, Roberts instead demonstrates his transnationalist instincts, engaging in dialogue with both the domestic courts of our treaty partners, and with the ICJ itself.
On the suppression issue, Roberts relied on a kind of “indirect” dialogue with foreign courts to support the Court’s ruling that suppression is not a required remedy for an Article 36 treaty violation. In interpreting the treaty, Roberts noted that “[i]t would be startling if [the Vienna] Convention were read to require suppression,” given that “[t]he exclusionary rule as we know it is an entirely American legal creation” and is “universally rejected” by other countries. In other words, if the courts of our treaty partners would not require suppression of evidence as the remedy for an Article 36 violation, the Convention surely could not be interpreted as imposing such a requirement on police in the United States.
On the procedural default issue, Roberts engaged in a much more “direct” kind of dialogue with the International Court of Justice itself. In a related case, the ICJ had ruled that application of U.S. procedural default rules violated Article 36, because it failed to give “full effect” to the purposes of the treaty. Roberts rejected the notion that the ICJ’s interpretation of the treaty was binding on the Court, but did acknowledge that the ICJ’s ruling was entitled to “respectful consideration.” He then went on to engage (and reject) the substance of the ICJ’s opinion, asserting that the ICJ’s ruling “overlooks the importance of procedural default rules in an adversarial system. Thus Roberts used dialogue with the ICJ as a means to “educate” the international court on the requirements of the adversarial system, and the importance of procedural default rules in that system.
To be sure, this was not exactly the kind of dialogue with the ICJ – or with foreign courts — that most transnationalist scholars and human rights advocates were hoping for. But it’s an important dialogue, nonetheless. In short, Sanchez-Llamas suggests that Chief Justice Roberts’ dialogic glass is half full: Far from the avowed enemy of transnational judicial dialogue that some have predicted, Roberts may well emerge as a judicial moderate with an appropriately nuanced view of the value, and limitations, of transnational judicial dialogue in the interpretive work of the Court.