Sotomayor on International Law
in April 2009, Judge Sotomayor delivered a speech on how federal judges look at foreign and international law that suggested she might take a more conservative position on that topic than Justice Souter.
She said that individuals had no right to file a lawsuit to enforce a treaty and that ratified treaties were not legally binding unless Congress separately passed a statute to do so. Treaties usually have effect, she said, only if the president and Congress choose to respect such obligations as a matter of politics, not law.
“Even though Article IV of the Constitution says that treaties are the ‘supreme law of the land,’ in most instances they’re not even law,” she said.
That principle, she said, explained the outcome of a high-profile 2008 Supreme Court ruling, Medellin v. Texas, which involved an International Court of Justice ruling that some Mexican inmates on death row in Texas should get new sentencing hearings because the authorities failed to help them get help from the Mexican Consulate, contrary to a treaty the United States had ratified.
But the Supreme Court ruled that the international court’s decision had no legal force and that the treaty was not binding, because Congress never passed a statute explicitly making it domestic law.
The ruling, Judge Sotomayor said, “surprised many human rights groups and civil liberties groups” but was “premised on very traditional American law principles.”
So she would have ruled against the Mexican inmates, disappointed the human rights groups and upheld a limited view of the treaty power. It’s almost like she’s not some kind of crazy left-wing radical.