Posted on 10/31/2003 4:02:41 AM PST by joesnuffy
O'Connor: U.S. must rely on foreign law Justice says, 'The impressions we create in this world are important'
Posted: October 31, 2003 1:00 a.m. Eastern
© 2003 WorldNetDaily.com
American courts need to pay more attention to international legal decisions to help create a more favorable impression abroad, said U.S. Supreme Court Justice Sandra Day O'Connor at an awards dinner in Atlanta.
"The impressions we create in this world are important, and they can leave their mark," O'Connor said, according to the Atlanta Journal-Constitution.
The 73-year-old justice and some of her high court colleagues have made similar appeals to foreign law, not only in speeches and interviews, but in some of their legal opinions. Her most recent public remarks came at a dinner Tuesday sponsored by the Atlanta-based Southern Center for International Studies.
The occasion was the center's presentation to her of its World Justice Award.
O'Connor told the audience, according to the Atlanta paper, the U.S. judicial system generally gives a favorable impression worldwide, "but when it comes to the impression created by the treatment of foreign and international law and the United States court, the jury is still out."
She cited two recent Supreme Court cases that illustrate the increased willingness of U.S. courts to take international law into account in its decisions.
In 2002, she said, the high court regarded world opinion when it ruled executing the mentally retarded to be unconstitutional.
American diplomats, O'Connor added, filed a court brief in that case about the difficulties their foreign missions faced because of U.S. death penalty practices.
More recently, the Supreme Court relied partly on European Court decisions in its decision to overturn the Texas anti-sodomy law.
"I suspect," O'Connor said, according to the Atlanta daily, "that over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues."
Doing so, she added, "may not only enrich our own country's decisions, I think it may create that all important good impression."
In July, O'Connor made a rare television news show appearance with Supreme Court Justice Stephen G. Breyer in which they were asked whether the U.S. Constitution, the oldest governing document in use in the world today, will continue to be relevant in an age of globalism.
Speaking with ABC News' "This Week" host George Stephanopoulos, Breyer took issue with Justice Antonin Scalia, who, in a dissent in the Texas sodomy ruling, contended the views of foreign jurists are irrelevant under the U.S. Constitution.
Breyer had held that a ruling by the European Court of Human Rights that homosexuals had a fundamental right to privacy in their sexual behavior showed the Supreme Court's earlier decision to the contrary was unfounded in the Western tradition.
"We see all the time, Justice O'Connor and I, and the others, how the world really – it's trite but it's true – is growing together," Breyer said. "Through commerce, through globalization, through the spread of democratic institutions, through immigration to America, it's becoming more and more one world of many different kinds of people. And how they're going to live together across the world will be the challenge, and whether our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generations."
In his dissent in the Texas case, Scalia said: "The court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is ... meaningless dicta. Dangerous dicta, however, since this court ... should not impose foreign moods, fads, or fashions on Americans," he said quoting the 2002 Foster v. Florida case.
Scalia's scathing critique of the 6-3 sodomy ruling was unusual in its bluntness.
"Today's opinion is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct," he wrote. Later he concluded: "This court has taken sides in the culture war."
The current court is split between Chief Justice William Rehnquist, Clarence Thomas and Scalia, who tend to hold the traditional constitutionalist approach to rulings, and the majority of O'Connor, Breyer, Kennedy, Ruth Bader Ginzburg, David H. Souter and John Paul Stevens, who tend to believe in the concept of a "living Constitution" subject to changes in public opinion and interpretation.
Related story:
Justice: Can Constitution make it in global age?
Scalia obviously hit the nail on the head here. O'Connor's & Breyer's attitudes toward the value of foreign opinion is scary. As my 5yo has recently developed an intereste in the American Revolution we've been doing a lot of reading about colonial America. I can only imagine what those who fought so hard for our freedom would think or say about such tripe.
What I don't understand is why we should care about the impression created by our laws is. Yes, it's useful to work together with other countries, at times, to accomplish a common goal. However, do other countries create/interpret/enforce their laws with a concern to how the United States sees them? I think not, and nor should they.
It's about backbone and moral conviction, Ms. O'Connor. Methinks you know little about either.
And even if we did, that is something for legislatures, not courts, to address; it's a political issue not a judicial issue. Hello, the Scotus is not the Junior Congress.
If
the situation arises where the applicable law in some foreign country is the same as ours,and if
the facts of the case in our courts are truly similar to the facts in a case previously tried abroad,then
the SCOTUS would be justified in giving the foreign precedent the same weight that a Michigan judge would give a precedent from Arizona.Which is not the same thing as saying that SCOTUS is obliged to agree with the foreign court.
Absolutely. Now- how do we get it done, and done ASAP?
What does Scottish law have to say on this?
Notice if you will that the majority, O'Connor aside, was the minority which inveighed against the decision in Bush v. Gore to, as x42 put it, "stop the voting" in Florida almost a month after the polls closed--and weeks after the black-letter law of Florida stipulated that the election results be certified by the Secretary of State of Florida.That minority's main plaint was that the SCOTUS decision could not but say out loud that SCoFla had not applied the law of Florida to the case before it (as indeed it had not). Their problem was that Bush v. Gore therefore officially recognized a case of judicial activism--breaking the code of silence on the very possibility of such behavior.
The minority was shocked--SHOCKED!!--to read in a SCOTUS decision that a State Supreme court might do such a thing.
She must have gone all googy eyed over Breyer.
.........In July, O'Connor made a rare television news show appearance with Supreme Court Justice Stephen G. Breyer in which they were asked whether the U.S. Constitution, the oldest governing document in use in the world today, will continue to be relevant in an age of globalism........Guys, EVEN knowing that the United States of America Constitution with its attendant amendments is the oldest form of government UNDER THE LAW in the world, and that it works FAR better than ANY Government EVER produced by man, these MOST HIGH judges would impose their OWN whims of any given day to change their Living Constitution rather than the legal means available within the United States of America Constitution ITSELF!!!
"We see all the time, Justice O'Connor and I, and the others, how the world really – it's trite but it's true – is growing together," Breyer said. "Through commerce, through globalization, through the spread of democratic institutions, through immigration to America, it's becoming more and more one world of many different kinds of people. And how they're going to live together across the world will be the challenge, and whether our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generations."
The current court is split between Chief Justice William Rehnquist, Clarence Thomas and Scalia, who tend to hold the traditional constitutionalist approach to rulings, and the majority of O'Connor, Breyer, Kennedy, Ruth Bader Ginzburg, David H. Souter and John Paul Stevens, who tend to believe in the concept of a "living Constitution" subject to changes in public opinion and interpretation.
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They would have rule over ALL>/B> by "consensus" of the majority of NINE people of "a law-profession culture" whose intelligence is beyond question due to their very redundant teaching {due to their education at LAW schools}, but whose factual knowledge is so miniscule, when compared to the knowledge of the whole of the world's populace, would be unmeasurable on any scale that could be devised by man.
So, they would rule ALL and every thing, based on the whims of any given day, by the majority ruling of NINE people. THIS IS PURE UNADULTERATED EVIL!!!! And, has been shown to be so MANY times in just the last 225 years of "Constitutional Rule" in the U.S. of A., without even considering the rest of recorded history. SOCIALISM by any other name is still socialism and rule over the many by the few. Peace and love, George.
And why, exactly, does O'Connor insist on the validity of some laws, as opposed to others?
If she believes that foreign laws are instrumental in deciding what is just for Americans, she needs to offer a valid argument as to why, for instance, the laws of England and France are of great import for us, as opposed to the laws of South Africa or Saudi Arabia.
She hasn't done this. After all, why insist on the laws of France, Germany, Great Britian? Why not adopt the laws of the Sudan or of the China?
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