Acting Solicitor General Paul Clement (SFS ’88) challenged the idea that the U.S. Supreme Court is shifting its focus toward global issues in a Gaston Hall address Tuesday evening. Clement, who has been serving as the Justice Department’s principal attorney since July, said that “despite the emerging consensus that the Supreme Court is becoming more globalized, it remains focused on the domestic law of the U.S.”

In recent years, globalization and the U.S.-led war on terrorism have raised more constitutional issues than in the past, though that rise remains small when compared to the number of domestic cases that the court hears. Clement estimated that between six and 10 of the 80 cases heard by the Supreme Court in its last term had applications to international law.

The court has found it difficult to find solutions in U.S. Constitutional law that can help resolve these international problems.

“There is something inherently domestic about the law,” Clement said. “Generally, nation-states do not represent the application of laws outside the territory of their states.”

This tradition has become increasingly relevant, especially with regard to last spring’s so-called “Enemy Combatant” cases, two of which Clement argued, Hamdi v. Rumsfeld and Rumsfeld v. Padilla. Precedents hold that the U.S. Constitution applies only to U.S. citizens living domestically and abroad and to aliens in the United States. This is one of the reasons why enemy combatants held at Guantanamo Bay, Cuba, were denied their constitutional rights.

Clement explained the competing view saying, “The torch should follow the flag [and] the Constitution should go wherever the U.S. goes.”

Clement did not question the jurisprudence of the court’s ruling in the enemy combatant cases as much as he examined what was explicit in the rulings as well as what was notably absent.

“What was striking about the [enemy combatant] decisions is how limited they were with respect to the issues they addressed,” he said. “There were other very important international law issues floating around in the briefs. Rather than address those issues, [the Supreme Court] left them for the lower courts to resolve.”

In cases that concern the boundaries between the U.S. legal system and foreign legal systems, Clement said that the Court “was satisfied with keeping U.S. laws within U.S. borders.”

He continued on to examine several other recent cases involving international law and concluded that it is generally difficult to generalize about the degree to which the Supreme Court is willing in involve itself in foreign disputes. On the contrary, it has shown a tendency to be disinterested in the opinions of foreign tribunals, he said.

“The one thing you may be able to point to in arguing the case for the Court’s concern with international law may be the reality that the Court can not escape international issues,” Clement said. “Generally, however, the focus of the Court is on acts of our Congress.”

Clement also noted that the current Supreme Court has been together for nine years – longer than any previous group of nine justices. That leaves a wealth of previous rulings to examine and from which a lawyer can divine tendencies of certain justices.

Nevertheless, Clement said it remains a difficult task.

“You can form a judgment about which justices are going to be concerned about which issues and what justices will have the deciding vote,” he said.

Government professor Anthony Arend, who teaches a course on international law, encouraged his students to attend the lecture.

“He was extraordinarily eloquent and insightful,” Arend said. “I was also quite impressed by both the quality of the questions he was asked and his remarkable facility at responding to them. But I suspect that is what one would expect from a person who has argued 19 times before the Supreme Court.”

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