an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Whenever there is a vacancy on the Supreme Court, there is talk of appointing a justice who will bring diversity to the Court. Different people have different ideas about what sorts of diversity would be desirable. Some people focus on demographic characteristics. Others believe the Court would benefit from more varied educational or professional backgrounds among the justices. Along with a co-author, I have contributed to these debates by calling for a return of politicians to the Supreme Court.
In thinking about diversity on the Supreme Court, it turns out we haven’t thought broadly enough. We could really diversify the Court by adding one kind of justice who has never served: a foreigner. The Constitution requires that the President, the Senators, and the Representatives all be citizens of the United States. However, there is no corresponding requirement that Supreme Court justices (the Constitution refers to them as “judges”) be U.S. citizens.
So next time there is a vacancy on the Supreme Court, why not look beyond our own borders? How about Associate Justice Angela Merkel? Or naming Zak Yacoob, who is approaching the end of his term as a member of the South African Constitutional Court? Perhaps Kevin Rudd, former Prime Minister of Australia, would make a good Supreme Court Justice. Or maybe Chief Justice Hironobu Takesaki of Japan would be interested. It’s really too bad that in 1990 when Justice Brennan retired, George Bush didn’t think to tap Margaret Thatcher. The possibilities are endless.
Just imagine how cosmopolitan the Supreme Court would be with a justice from a foreign land. Current debates about whether the Court should cite to foreign legal sources would suddenly seem unimportant.
Appointing a foreigner to the Court requires, of court, the consent of Senate. There are also some congressional hurdles that would need to be overcome. For one thing, federal law prohibits the use of appropriated funds to employ non-citizens within the United States (except in some circumstances not applicable here). For another thing, federal immigration law restricts the ability of individuals who are neither citizens nor permanent residents to engage in employment within the United States. There is some question as to whether application of those restrictions to a Supreme Court justice would be constitutional. But it would surely be easier to name a foreigner to the Court if Congress were simply to lift statutory hurdles.
The Constitution also requires Supreme Court justices to “be bound by Oath or Affirmation, to support this Constitution.” Perhaps the oath requirement implies that a foreigner cannot serve on the Supreme Court. Perhaps. Marbury v. Madison makes clear that in the context of Article III, the oath requirement means that the justices must apply the Constitution as supreme law of the land. While a foreigner might not be willing to “support this Constitution” by taking up arms to defend it, there is no particular reason a foreigner could not apply the Constitution as a member of the Supreme Court.