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First official meeting between members of the United States Supreme Court and the European Court of Human Rights
Center’s Director of Programs in International Justice and Society attends
Director of the Ethics Center’s Programs in International Justice and Society Leigh Swigart recently attended the first judicial dialogue event for judges of the United States Supreme Court (USSC) and the European Court of Human Rights (ECHR). “Judicial Process and the Protection of Rights” was organized by the George Washington University Law School. It consisted of a public session – widely attended by the media, members of the government, law faculty and students – followed by three closed and confidential sessions, with a restricted audience.
The public session addressed the roles that the two courts play within their respective judicial and political systems. This topic was approached through analyzing judgments delivered by the two courts about the display of religious symbols in public and the consequences for religious freedom.
The ECHR cases addressed the hanging of crucifixes in Italian public classrooms (Lautsi v. Italy, 2009 and 2001), and the legality of banning Muslim women’s headscarves (Dahlab v. Switzerland, 2001). The USSC cases were about the display of the Ten Commandments in Kentucky courthouses (McCreary County v. ACLU, 2005), and in the Texas capitol (Van Orden v. Perry, 2005).
The discussion of these cases allowed ECHR Judge Lech Garlicki of Poland and USSC Associate Justice Stephen Breyer, as well as the other panelists, to flesh out some of the differences that exist between the two judicial institutions. Although both aim to protect the rights of plaintiffs, the principal role of the USSC is the interpretation of the U.S. constitution and, by extension, the establishment of a democratic order.
Leigh Swigart (center) with European Court of Human Rights Judges Françoise Tulkens (l) and Nina Vajic, a frequent Brandeis Institute for International Judges participant.
The ECHR, on the other hand, was created as part of the treaty establishing the European Convention of Human Rights and is charged with judging alleged violations of individual rights by member states. However, the ECHR might also be seen as playing a constitutional court role, given the standard-setting power of its rulings. Many other differences between the two courts were raised during the session, substantive, procedural, and ideological.
Two closed sessions looked at freedom of expression and extraterritoriality, issues about which the two courts have sometimes produced very divergent jurisprudence. Another addressed the array of institutional challenges facing the two courts, including the management of increasing caseloads and how to approach the selection of cases.
Associate Justices Samuel Alito, Anthony Kennedy, and Sonia Sotomayor of the USSC were joined in the closed discussions by ECHR Judges Nina Vajic of Croatia, Françoise Tulkens of Belgium, and Sir Nicolas Bratza of the United Kingdom (President), as well as former Judge and President Jean Paul Costa of France. ECHR Registrar Erik Fribergh of Sweden and Deputy Registrar Michael O’Boyle of Northern Ireland also participated.
Justice Sotomayor has a connection to the Ethics Center going back to 2007, before her nomination to the U.S. Supreme Court: she contributed the foreword to The International Judge: an Introduction to the Men and Women who Decide the World's Cases, authored by Swigart along with Ethics Center Director Dan Terris and Prof. Cesare Romano of Loyola Law School. This was the first time that Swigart had the opportunity to meet Justice Sotomayor in person.
The Center itself has a long experience in designing judicial dialogue programs, both through the Brandeis Institute for International Judges and a judicial colloquium series. It was a pleasure to observe how another academic institution approached this kind of event, so important in an era of increasing judicial cross-fertilization.