Originally uploaded at SSRN.


This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese general responsible for attacking Pearl Harbor, and that this sowed seeds of concern about another targeted state killing, capital punishment. Also illuminating are memoranda from Stevens' clerkship with Justice Wiley Rutledge. Parts of Stevens' drafts found their way into two Rutledge opinions whose themes remain relevant: one decried executive detention of German nationals; the other, denial of meaningful review to an Italian teenager who had pleaded guilty to murder in a hearing at which the arresting officer acted as interpreter. Fully six years before the decision in Brown v. Board of Education, clerk Stevens advised that segregation be ruled unconstitutional.