Posted on 04/21/2005 7:58:06 PM PDT by kingattax
WASHINGTON (AP) - Justice Sandra Day O'Connor on Thursday dismissed growing criticism about the Supreme Court's use of international law in its opinions, saying it makes sense for justices to look at foreign sources when a point of law is unclear.
O'Connor, a Reagan appointee, participated in a lively one-hour discussion at the National Archives with Justices Antonin Scalia and Stephen G. Breyer. She said if there is no controlling U.S. precedent or the viewpoint of states is unsettled, "of course we look at foreign law."
"This is much ado about nothing," she said in response to a question by moderator Tim Russert of NBC. "Our Constitution is one that evolves. What's the best way to know? State legislatures - but it doesn't hurt to know what other countries are doing."
O'Connor's comments come amid a growing divide on the court over the citation of international opinion to support decisions interpreting the Constitution. Last month, justices ruled 5-4 to outlaw the death penalty for juvenile killers, citing in part international sentiment against it.
O'Connor, who dissented in that ruling, wrote in a separate opinion that international law was relevant but in that case wasn't strong enough to justify striking down the practice since many state legislatures still allowed it.
Earlier this week, House Majority Leader Tom DeLay singled out Justice Anthony Kennedy's work as "incredibly outrageous" and "activist," citing his majority opinion in the death penalty case in particular because the Reagan appointee uses international law and "does his own research on the Internet."
Three of the justices - Scalia, Chief Justice William H. Rehnquist and Clarence Thomas - have said foreign law has no relevance. Scalia has been increasingly critical of the practice in recent months, pointing to decisions in recent years to decriminalize gay sex and ban the execution of the mentally retarded.
"I don't agree it's much ado about nothing," Scalia said in response to O'Connor. Regarding the death penalty case, he said the majority led by Kennedy "contradicted the view of the majority of the states."
"I don't see how international law is relevant. I don't know what a South Africa court will tell you about American law," he said.
Breyer countered: "It's appropriate in some instances to look at other places. It's not binding by any means. But if they have a way of working out a problem that's relevant to us, it's worth reading."
During the panel discussion, the three justices also said their typical work day consists mostly of reading - "on average 1,500 pages a day," according to O'Connor - and some writing.
In response to questions, the justices said they never horse-trade for votes, although at times they might seek a unanimous vote if possible in a particularly controversial case.
O'Connor, Scalia and Breyer also said they opposed live television coverage of their oral arguments, which are open to the public and available on audiotape several days afterward. They said sound bites could misrepresent the proceedings.
"For every one person who watches gavel to gavel to understand what's going on, 10,000 will see takeouts on network news I guarantee will be misinterpreted," Scalia said.
Breyer said the court prefers to avoid making a dramatic change that might prove to have unintended consequences, such as a distortion of the court's work.
"First go with the audio, and be very cautious. I think that would be my point of view," he said.
Only through amendment. It's time for O'Connor to retire and let someone who understands history and has a brain take over.
the 'reagan appointees' sure have turned out well, eh ?
She says, "Much ado about nothing", but also says that the Constitution is an evolving thing? I DON'T THINK SO--
If there is no controlling precedent then "of course we look to foreign law", sooooooo, we let foreigners set our precedents?
Wasn't ROE v. WADE precedent setting? Which countries' law did they use for THAT! Or is that just another "evolving" part of the Constitution you are changing?!
Judges have embraced the dreadful "living document" theory because it aggrandizes their own power. If a constitution evolves, then it becomes nothing but the hive-mind of its keepers: the Supreme Court. The original opinion that declared the power of judicial review, Marbury v. Madison, was the beginning of usurpation by this assemblage of dotards. They will not willingly give up their power--no one does. What we need is leadership with the willingness to mock their pretensions to super-constitutionality, and ignore their dictates. Smash the Court's prestige (how it still has any I'll never know), and it will shrink like a frightened turtle (to borrow Seinfeld's colorful phrase).
Only through amendment. It's time for O'Connor to retire and let someone who understands history and has a brain take over.
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This leftist mindset is why lifetime appointments to the SC are EXTREMELY dangerous to America's integrity. Just reading her comments says she IS NOT A SUPPORTER OF MAINTAINING THE CONSTITUTION, and feels that what other countries do should somehow INFLUENCE HOW WE DO THINGS.
The problem we have with THE SC now is that they are operating (not all of them - certainly not Scalia) under the opinion THEY CAN MAKE LAW. THEY CANNOT! Only the legisilative branch can MAKE LAW...they can only interpret the law, not change or modify or invent it. No matter what the frothing left says, in their daily protection of an activist judiciary, the judiciary in this country DOES NEED TO BE REIGNED IN - AND THE CONGRESS HAS THE POWER TO DO THAT!
Remember that judiciary is the VEHICLE OF THE LEFTIST AGENDA...it must be watched and controlled and kept within the strictest confines of the Constitutional LIMITS which are imposed on it!!!!
I can see her problem...
If only the Founding Fathers had been wise enough to put some kind of provision in the Bill of Rights to indicate that ALL items not addressed by the Constitution were to be handled by the individual states. That would have solve lots of problems.....
If they have a way of working out a problem then Congress can look into it. The courts are to follow laws passed in this country. The fact that Supreme Court Justices cannot see this is rather scary.
So the Constitution, U.S. statute laws and centuries of Common Law just don't provide enough of a framework. What are we paying these people for?
Yeah, that line sure stuck out like a sore thumb, didn't it?
Whew... Ronald Reagan must be spinning in his grave.
For your -- consideration.
I think Scalia is right and O'Connor much too sanguine. It is one thing to compare how other countries have dealt with issues. It is another thing to give their legislative enactments any weight whatsoever. The courts are not legislators and cannot simply impose foreign legislation because the prefer it. The real issue, however, is that Constitutional jurisprudence is utterly elastic and will justify almost any kind of legislation that the court wants to impose upon the country. The Supreme Court has become a political legislator, not a good faith interpreter of the Constitution, and should be humbler about overturning the expressed will of the legislator without a clear and direct Constitutional mandate to do so.
If there is no U.S. law, precedent or viewpoint, then there is no case.
If amendments become too common to overrule the will of the courts I wonder if they will rule that Constitutional Amendments are unconstitutional. There seems to be no limit to the scope and reach of their power. Right now I'm seeing the judiciary as the 2nd biggest threat to our way of life behind Islamic terrorism.
Nice visual----LOL
I wonder if she buys models of the remnants of Partial Birth Abortion for her grand children to play with?
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