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2013]ESSAYS IN HONOR OF JUSTICE GINSBURG427In one of its major internationalist decisions, INS v. CardozoFonseca,13 the U.S. Supreme Court in 1987 found that interpretationof the U.S. definition of a refugee must be consistent with the treatyupon which the implementing legislation was based. Given this background, Justice Blackmun in his concurrence emphasized that the administrative agency should be guided by international standards wheninterpreting the Refugee Act and the United States’ treaty obligationsunder the U.N. Refugee Protocol because of the Protocol’s “rich history of interpretation in international law and scholarly commentaries.”14Earlier, in 1985, the Board of Immigration Appeals (BIA or Board)wrote one of the seminal decisions in refugee law, Matter of Acosta,15which has had broad international reach. In that case, the Board established the “immutable characteristics” paradigm for interpreting the“particular social group” (PSG) ground in the definition of refugee,rooting interpretation in principles of nondiscrimination fundamentalto domestic and international law.16 In recognition of these principlesand in a spirit of comity, other states parties’ tribunals, including theSupreme Court of Canada and the U.K. House of Lords (now the Supreme Court of the United Kingdom), among others, have adopted theBIA’s approach to interpreting the PSG ground. This became a precedent for comity in interpretation of not only this but also other provisions of the Refugee Convention.17 However, even as this respect forthe international nature of the treaty was being recognized broadly byother states parties, the United States backed off of its own Acostaprecedent, precipitating a prolonged (and ongoing) battle within theUnited States regarding the meaning of the PSG ground for asylum.Sadly, the U.S. Supreme Court itself retreated from an internationalist approach in its infamous 1993 decision Sale v. Haitian CentersCouncil, Inc.,18 regarding the scope of refugee law’s fundamental nonrefoulement or nonreturn obligation, despite extensive briefing thaturged a contrary decision, including by the United Nations HighCommissioner for Refugees.19 In short, in the interpretation of a ��––––––––––––13141516480 U.S. 421 (1987).Id. at 451 (Blackmun, J., concurring).19 I. & N. Dec. 211 (B.I.A. 1985).For an extensive discussion of Acosta, and the PSG ground generally, see ANKER, supranote 11, §§ 5:39–:63.17 See Anker, supra note 12, at 136.18 509 U.S. 155 (1993).19 Several refugee law commentators were critical of the Haitian Centers Council decision.See, e.g., JAMES C. HATHAWAY, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW336 (2005) (noting that the majority’s arguments in Haitian Centers Council “have little substance”); Thomas David Jones, International Decision, Sale v. Haitian Centers Council, Inc., 88AM. J. INT’L L. 114, 122 (1994) (noting that the analysis in Haitian Centers Council “is flawed innumerous respects”); Harold Hongju Koh, Essay, The “Haiti Paradigm” in United States HumanRights Policy, 103 YALE L.J. 2391, 2491 (1994) (“Haitian Centers Council takes its place atop a

428HARVARD LAW REVIEW[Vol. 127:423ly international law–based statute, the United States has been both aleader and one of the most significant naysayers in adopting principlesfrom international and comparative law.In a partial dissent in the 2009 Supreme Court case Negusie v.Holder,20 Justice Stevens, joined by Justice Breyer, endorsed the role ofcomparative sources in interpreting the “persecution of others” bar toasylum. Citing cases from Canada, the United Kingdom, Australia,and New Zealand, Justice Stevens noted that, “[w]hen we interprettreaties, we consider the interpretations of the other courts of other nations, and we should do the same when Congress asks us to interpret astatute in light of a treaty’s language.”21 Justice Stevens’s opinion isstarting to gain some traction in U.S. asylum law.22Scholars and advocates have been trying hard to relegitimize an internationalist approach and especially to reverse the BIA’s undermining of Acosta’s interpretation of the PSG ground of asylum. We academics and practitioners in the field of refugee law thank JusticeGinsburg for taking leadership in legitimizing the role of comparativeand international law in our national ��–––––––––––––line of recent Supreme Court precedent misconstruing international treaties.”). Since HaitianCenters Council, some have said that due to the United States’ refusal to apply the nonrefoulement principle in international waters, the principle has broken down. For example, theAustralian government and the Italian government have both recently refused to admit certainrefugees in violation of the principle of non-refoulement. In 2011 the High Court of Australia andin 2012 the European Court of Human Rights struck down these actions by the Australian government and Italian government, respectively, but Australia most notably has continued the policy.20 129 S. Ct. 1159 (2009).21 Id. at 1175 (Stevens, J., concurring in part and dissenting in part).22 See, e.g., ANKER, supra note 11, §§ 6:3–:7.

JUSTICE GINSBURG’S INTERNATIONAL PERSPECTIVESusan H. Farbstein The value of looking to international and comparative law, in particular on questions related to equality, is one important theme thatemerges from Justice Ruth Bader Ginsburg’s twenty years on the Supreme Court. This perspective dates to her career as a practicing attorney. The first matter she briefed to the Court, in 1971, included citations to two cases from the then-West German Constitutional Court.1Justice Ginsburg has said that she did not expect the Court would citethese cases in its opinion, but rather hoped that they might have “apositive psychological effect. If our Supreme Court noticed what theWest German Constitutional Court was doing, the Justices might ponder: ‘How far behind can we be?’”2 Since that time, she has helpedshape our — and the Court’s — evolving notion of the place of international and foreign law in U.S. jurisprudence. Her years on theCourt have been marked by its growing attentiveness to legal developments around the world, as well as a recognition that the UnitedStates should keep pace with these changes.While always cognizant of the fact that only U.S. law provides abinding precedent for the Court, Justice Ginsburg has provided a crucial voice for looking beyond our borders to “add to the store ofknowledge relevant to the solution of trying questions.”3 No decisionof hers better embodies this approach than her concurring opinion inGrutter v. Bollinger.4 After being denied admission to the Universityof Michigan Law School, Barbara Grutter, a white woman, �––––––––––––– Assistant Clinical Professor and Clinical Director, Human Rights Program, Harvard LawSchool. The author would like to thank Caroline Schneider, Harvard Law School ’13, for herresearch assistance in preparing this piece.1 Brief for Appellant at 54–55, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4). The case involved an Idaho statute about who could administer a decedent’s estate, which provided that “asbetween persons ‘equally entitled to administer [a decedent’s estate], males must be preferred tofemales.’” Id. at 5 (quoting IDAHO CODE ANN. § 15-314 (1948) (repealed 1971)). Then-attorneyGinsburg cited two cases in which the West German Constitutional Court held similar laws unconstitutional. The first involved a provision of the German civil code providing that when parents disagree about the raising of a child, the father decides. The other preferred sons overdaughters in land inheritance. Id. at 55.2 A Conversation with Justice Ruth Bader Ginsburg, 53 U. KAN. L. REV. 957, 961 (2005).3 Justice Ruth Bader Ginsburg, Address at the International Academy of Comparative Law,American University: “A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication (July 30, 2010) [hereinafter Address at theInternational Academy of Comparative Law], available at ewspeeches.aspx?Filename sp 08-02-10.html.4 539 U.S. 306 (2003).429

430HARVARD LAW REVIEW[Vol. 127:423that she had been discriminated against on the basis of her race andsued to challenge the validity of the school’s affirmative action admissions program.5 The Court found that the admissions process did notviolate the Fourteenth Amendment’s equal protection guarantee, andthat diversity was a sufficiently compelling interest to permit the consideration of race as practiced by the law school’s admissions program.6In her concurring opinion in Grutter, Justice Ginsburg relied uponinternational human rights law, and in particular upon two UnitedNations Conventions, to support her conclusions. Citing the International Convention on the Elimination of All Forms of Racial Discrimination,7 she noted that:The Court’s observation that race-conscious programs “must have alogical end point,” accords with the international understanding . . . of affirmative action. The International Convention on the Elimination of AllForms of Racial Discrimination, ratified by the United States in1994 . . . instructs [that affirmative action measures] “shall in no case entail as a consequence the maintenance of unequal or separate rights fordifferent racial groups after the objectives for which they were taken havebeen achieved.”8Relying further on the Convention on the Elimination of All Forms ofDiscrimination Against Women,9 she noted that affirmative actionprograms are permissible but must be temporary measures limited tothe length of time required to achieve de facto equality.10 In addition,her dissenting opinion in the companion case of Gratz v. Bollinger11referenced her use of international law in Grutter. Differentiating between invidious and remedial discrimination, she stated that“[c]ontemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality.”12Justice Ginsburg had been thinking about affirmative actionthrough an international human rights lens long before these casesreached the Court. In a 1999 speech, she noted that affirmative action,both in the United States and abroad, is anchored in the ––––––––––––––5678Id. at 316–17.Id. at 343.Opened for signature Mar. 7, 1966, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969).Grutter, 539 U.S. at 344 (Ginsburg, J., concurring) (citation omitted) (first quoting Grutter,539 U.S. at 342 (majority opinion), then quoting International Convention on the Elimination ofAll Forms of Racial Discrimination, supra note 7, art. 2(2)).9 Adopted Dec. 18, 1979, 1249 U.N.T.S. 13 (entered into force Sept. 3, 1981).10 Grutter, 539 U.S. at 344 (Ginsburg, J., concurring).11 539 U.S. 244 (2003).12 Id. at 302 (Ginsburg, J., dissenting).

2013]ESSAYS IN HONOR OF JUSTICE GINSBURG431Declaration of Human Rights13 — and appropriately so, given thatboth affirmative action and the Declaration itself stand at the intersection of the civil/political and economic/social rights regimes. She described how affirmative action programs aim to redress historic andcontinuing denials of the right to equality, as well as to advance theeconomic and social well-being of groups disproportionately impactedby poverty, lack of quality education and health care, or unemployment. Reading the Declaration in conjunction with the two associatedConventions that she would later cite in Grutter, she stated that thedocuments “indicate[] that affirmative action is not necessarily at oddswith human rights principles, but may draw force from them, in particular, from the prescriptions on equality coupled with provisions oneconomic and social well-being.”14 Indeed, the Declaration’s socialwelfare theme aligns with the idea that a diverse student body couldenrich the educational experience of all students. Article 26 states thatpublic education “shall be directed” to “promot[ing] understanding, tolerance, and friendship among all nations, racial or religious groups.”15As Justice Ginsburg explained, “Affirmative action so directed mightbreak down more barriers than it raises by enabling members of diverse groups to share in the everyday business of living, working, andlearning together.”16Justice Ginsburg’s public lectures have championed the practice oflooking beyond our borders for guidance: “The U.S. judicial systemwill be the poorer, I have urged, if we do not both share our experiencewith, and learn from, legal systems with values and a commitment todemocracy similar to our own.”17 She respects international instruments and the legal judgment of those outside our country, noting that:Judges in the United States are free to consult all manner of commentary — Restatements, Treatises, what law professors or even law studentswrite copiously in law reviews . . . . [W]hy not the analysis of a questionsimilar to one we confront contained in an opinion of the Supreme Courtof Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human ––––––––––––––13 Ruth Bader Ginsburg & Deborah Jones Merritt, Fifty-First Cardozo Memorial Lecture,Affirmative Action: An International Human Rights Doctrine, 21 CARDOZO L. REV. 253, 255–58(1999) [hereinafter Fifty-First Cardozo Memorial Lecture].14 Id. at 261.15 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III),art. 26(2) (Dec. 10, 1948).16 Fifty-First Cardozo Memorial Lecture, supra note 13, at 266.17 Address at the International Academy of Comparative Law, supra note 3.18 Justice Ruth Bader Ginsburg, Speech at the Constitutional Court of South Africa: “A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication (Feb. 7, 2006), available at ewspeeches.aspx?Filename sp 02-07b-06.html.

432HARVARD LAW REVIEW[Vol. 127:423American attorneys working on human rights issues, whether in theUnited States or abroad, find her willingness to consider the practicesand logic of the international community especially valuable. As JusticeGinsburg herself has noted, this approach aligns with our history.19The Framers of our Constitution understood that the country wouldbe bound by international law and granted Congress the authority “[t]odefine and punish . . . Offences against the Law of Nations.”20 Ourfirst Chief Justice, John Jay, wrote that “by taking a place among thenations of the earth, [the United States had] become amenable to thelaws of nations.”21 In The Paquete Habana,22 the Supreme Court famously explained that “[i]nternational law is part of our law.”23Just as importantly, however, this approach signals our humility, reinforces the value of consultation and comparative dialogue, and recognizes that we have much to learn from others’ innovations as wecontinue to work together against common injustices. As JusticeGinsburg has so eloquently stated:[C]omparative analysis emphatically is relevant to the task of interpretingconstitutions and enforcing human rights. We are the losers if we neglectwhat others can tell us about endeavors to eradicate bias against women,minorities, and other disadvantaged groups. For irrational prejudice andrank discrimination are infectious in our world. In this reality, as well asthe determination to counter it, we all 324See Address at the International Academy of Comparative Law, supra note 3.U.S. CONST. art. I, § 8, cl. 10.Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 474 (1793) (opinion of Jay, C.J.).175 U.S. 677 (1900).Id. at 700.Fifty-First Cardozo Memorial Lecture, supra note 13, at 282.

DISSENTING IN GENERAL:HERRING v. UNITED STATES, IN PARTICULARJudge Nancy Gertner One can describe Justice Ginsburg as a reluctant dissenter. Sheagrees with Chief Justice Roberts that the Supreme Court providesclearer guidance and its opinions receive more deference when they areunanimous. When deciding whether to write separately, she asks, “Isthis dissent or concurrence really necessary?”1 “Really necessary” dissents would include not only those that force the majority to improvetheir opinion,2 or those that could well become a majority opinion after drafts are exchanged. They involve dissents that have implicationsbeyond the case at hand, and even beyond the court audience. A dissent, she said, can be “an appeal . . . to the intelligence of a future day,when a later decision may possibly correct the error.”3 Beyond the canonically famous dissents, Justice Ginsburg pointed to Justice Breyer’sdissent in Parents Involved in Community Schools v. Seattle SchoolDistrict No. 14 and the dissents in District of Columbia v. Heller5 asthose that appeal to posterity. Equally important, some dissents cangarner publicity and create pressure for legislative change. As an example, Justice Ginsburg identified her dissent in Ledbetter v. GoodyearTire & Rubber Co.,6 which resulted in legislative change in 2009.7 Inthe final analysis, Justice Ginsburg expressed hope that her dissentswill be stronger because she had the wisdom to “choos[e] [her] ground.”8Given this philosophy, Justice Ginsburg’s dissent in Herring v.United States,9 on the surface a garden-variety Fourth Amendmentexclusionary rule case, takes on special resonance. In Herring, a policeofficer, suspicious of the defendant, who was seeking to gather something from his impounded truck, requested a warrant check. The ��––––––––––– Professor of Practice, Harvard Law School.Ruth Bader Ginsburg, Lecture, The Role of Dissenting Opinions, 95 MINN. L. REV. 1, 3(2010).2 For example, Justice Ginsburg credits Justice Scalia’s dissent in United States v. Virginia,518 U.S. 515 (1996), with making her opinion for the Court better. Ginsburg, supra note 1, at 3.3 Ginsburg, supra note 1, at 4 (alteration in original) (quoting Ruth Bader Ginsburg, Remarkson Writing Separately, 65 WASH. L. REV. 133, 144 (1990) (quoting CHARLES EVANS HUGHES,THE SUPREME COURT OF THE UNITED STATES 68 (1936))).4 551 U.S. 701 (2007).5 554 U.S. 570 (2008).6 550 U.S. 618 (2007).7 See Ginsburg, supra note 1, at 5–6.8 Ginsburg, supra note 1, at 8.9 129 S. Ct. 695 (2009).1433

434HARVARD LAW REVIEW[Vol. 127:423ficer was told that the computer database in the sheriff’s departmentof a neighboring county showed an active warrant for Herring’s arrest.The report was in fact in error; the computer database was at oddswith the physical records in the same office. The warrant had beenrecalled some five months before and was corrected only minutes afterHerring was arrested and a search incident to that arrest found an illegal firearm and drugs. That Herring’s arrest violated his FourthAmendment rights was uncontested; the only issue was whether theevidence the police obtained through the unlawful search should havebeen suppressed.10The majority in Herring held exclusion was not warranted becausethe police error “was the result of isolated negligence attenuated fromthe arrest.”11 Consider the concepts: Not only was “negligent” policeconduct protected from exclusion, but so too was negligent police conduct that was “isolated” and “attenuated.” Trivializing the misconduct,the Court held that it did not implicate the “core concerns” of theFourth Amendment, as did the earlier exclusionary rule cases whichinvolved flagrant police misconduct.12 When the police behave onlynegligently, the Court reasoned, deterrence made no sense. Applying acost-benefit analysis, and concluding that the costs of exclusion faroutweighed its benefits, the Court rejected exclusion.13While the Fourth Amendment exclusionary rule had been narrowed in a host of prior Supreme Court decisions, to Justice Ginsburg,the majority’s opinion went too far. A dissent — and a particularlyforceful one — was warranted, although clearly not in the hopes ofimproving the majority’s decision or supplanting it. That was unlikely. This was a dissent for posterity — a call to future courts to undowhat the majority had done. First, Justice Ginsburg refocused the inquiry on a “‘more majestic conception’ of the Fourth Amendment andits adjunct, the exclusionary rule,”14 as a constraint on the sovereign,and as essential to protecting the integrity of the Court. Indeed, thedissent was buttressed not only by the early suppression cases, likeMapp v. Ohio,15 but also the legendary dissents of Justices Holmes andBrandeis in Olmstead v. United States16 and Justice Brennan in United States v. 1314See id. at 698–99.Id. at 698.Id. at 702.See id. at 703–04.Id. at 707 (Ginsburg, J., dissenting) (quoting Arizona v. Evans, 514 U.S. 1, 18 (1995) (Stevens,J., dissenting)).15 367

2013] ESSAYS IN HONOR OF JUSTICE GINSBURG 427 In one of its major internationalist decisions, INS v.Cardozo-Fonseca,13 the U.S. Supreme Court in 1987 found that interpretation of the U.S. definition of a refugee must be consistent with the