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John Roberts on Foreign Policy
Supreme Court Justice (nominated by Pres. George W. Bush 2005)
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Allow Jerusalem-born man to have Israel on passport
In 2002, Congress [passed a law] that "for purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or
the citizen's legal guardian, record the place of birth as Israel." (Previously, the State Department had simply put "Jerusalem" as the place of birth without specifying a particular country.) The State Department refused to honor the statutory right
extended by Section 214(d).Chief Justice Roberts observed that "never before has this Court accepted a President's direct defiance of an Act of Congress in the field of foreign affairs." Chief Justice Roberts also criticized the Court's support
for its exclusive power holding, and argued that "even if the President does have exclusive recognition power, he still cannot prevail in this case, because the statute at issue does not implicate recognition."
Source: LawFare blog on 2015 SCOTUS "Zivotofsky v. Kerry"
, Jun 8, 2015
Foreign law is irrelevant to US elected officials
The court's more conservative members--Chief Justice Roberts, and Justices Alito, Scalia & Thomas--oppose the citation of foreign law in constitutional cases. "If we're relying on a decision from a German judge about what our Constitution means, no
president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge," Roberts said at his confirmation hearing. "And yet he's playing a role in shaping the law that binds the people in this country."
Source: Adam Liptak, New York Times, "Ginsburg Shares"
, Apr 11, 2009
Vienna Convention treaty not binding on US courts.
Justice Roberts wrote the Court's decision on MEDELLIN v. TEXAS on Mar 25, 2008:
After his conviction for murder, Mexican citizen Jose Medellin argued on appeal that police should have complied with the Vienna Convention and asked if he wanted his consulate notified of his arrest. Texas courts held that Medellin should have made this argument before trial. Separately, the UN's International Court of Justice heard a case involving Medellin, brought by Mexico against the US, on failure to comply with the Convention. The ICJ held that Texas courts must provide Medellin with hearings on the issue.
HELD: Delivered by Roberts; joined by Scalia, Kennedy, Thomas, & Alito
The Vienna Convention was not "self-executing" but required further federal law for it to be binding upon US courts. The ICJ decision, further, was not binding on domestic courts since the country's obligations- was only to defend the case, not abide by an ICJ judgment, and
- under the UN charter was only to "undertake to comply" with ICJ decisions.
Mexico was the party before the ICJ, not Medellin, and he gained no personal rights from the ICJ ruling. Pres. Bush wrote that state courts should give effect to the Convention did not bind those courts, because the Constitution does not grant him this power without Senate consent.CONCURRED: Stevens concurs
The language of the UN Charter about a nation's obligation to heed an ICJ decision is too vague to be binding upon domestic courts.DISSENT: Filed by Breyer; joined by Souter & Ginsburg
Standards for self-execution cannot be made clear in multilateral treaties since each country has its legal traditions for treaties. However, since the Vienna convention concerns an individual right AND the Supremacy Clause subjugates domestic law to treaties AND the ICJ asked Texas courts to hold a hearing on a legal issue AND the President favors this and Congress does not oppose it, the Supreme Court ought to enforce the ICJ decision.
Source: Supreme Court case 08-MEDELL argued on Oct 10, 2007
Page last updated: Mar 21, 2022