American judges, like American politics, often seem only dimly aware of the rest of the world—what Justice Scalia once dismissed as "foreign moods, fads, or fashions."
Our Supreme Court’s priorities are entirely domestic—a bitter quarrel with Congress in particular and with the federal government in general. And to judge by the tone of an oral argument held Tuesday, the conservative justices think of foreigners chiefly as potential enemies in that domestic struggle. Justice Scalia, for example, worried that a treaty would surreptitiously impose gay marriage on the states. Justice Samuel A. Alito asked whether some treaty somewhere would reduce gun rights. Chief Justice John Roberts asked whether the United Nations could require the United States to give more power to Congress. Justice Anthony Kennedy worried that some treaty might give the president the power "to set aside any State law that in his view contravenes a national interest."
These four conservatives were propounding these broccoli-style horribles (call them "florets") in their eagerness to take the Treaty Power, and that pesky president, and the scheming Senate, down a peg. Remarkably enough, they seemed disposed to do this in a case where no such major doctrinal shift should be needed. Bond v. United States involves a criminal prosecution so lopsided that even the internationally minded Breyer found it ludicrous. The Court could—as Breyer himself suggested—make the problem vanish by reading a federal statute slightly more narrowly than the court below. But easy cases make bad law: that solution—which strikes me as clearly right, and would leave the Treaty Power untouched—seemed to command no other vote than Breyer’s own.