WSJ: Judicial Tourism - What's wrong with the U.S. Supreme Court citing foreign law.

Wall Street Journal ^ | September 16, 2005 | MARY ANN GLENDON

[OESY]

References to foreign law in Supreme Court opinions have become controversial.... True, the references have increased somewhat, but they remain rare, and no one suggests that the court has directly based any of its interpretations of the Constitution on foreign authority.

As the issue was framed recently in a debate between Justices Stephen Breyer and Antonin Scalia, it comes down to this: The former says that if a judge abroad has dealt with a similar problem, "Why don't I read what he says if it's similar enough? Maybe I'll learn something." Yet the latter would exclude such material as wholly without bearing on the meaning of the Constitution; and quite apart from originalism, the different political, constitutional, procedural and cultural contexts in other nations drastically limit its relevance. Justice Breyer counters that the experience of others "may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem."

The Breyer view may sound sweetly reasonable; but when one looks at the cases where foreign law has figured prominently, it is evident that the practice is more problematic than proponents have let on. Earlier this year, in Roper v. Simmons, a 5-4 majority struck down the death penalty as it applied to persons over 15 and under 18. Justice Anthony Kennedy stated for the court that "the overwhelming weight of international opinion [is] against the juvenile death penalty," and that "the opinion of the world community, while "not controlling our outcome, does provide respected and significant confirmation for our own conclusions." In its effort to delegitimate state laws in question, the Roper majority, including Justice Breyer, not only reached out to "international opinion," but selectively cited various social science materials.

There is, of course, no such thing as a "world community."...

[OESY]

Ms. Glendon is Learned Hand Professor of Law at Harvard Law School.

[babyface00]

The Breyer view may sound sweetly reasonable

Only if other countries want to use our Constitution, or if the SC is charged with making law.

Since neither is the case, the opinions of foreign courts are irrelevant at best to the interpreting of a law's Constitutionality.

[SuziQ]

I've seen Mary Ann Glendon mentioned as a possible SCOTUS nominee. She is a brilliant person, but the pro-abortion forces would go into apoplexy if she were nominated!!

This is a VEY good article!

[satchmodog9]

To look at foreign law to make a reasonable decision is a typical fraudulent liberal argument. The Constitution says what it means and means what it says. You don't have to get the opinions of jurists with whom you agree to subvert the law of the land.

[muawiyah]

It's enough to say that the arch-traitor Ginsburg and her running dog lackeys on the Supreme court read what Robert Mugabe, the dictator, did about taking property ~ they were enlightened and then wrote their piece about the 5th Amendment no longer protecting the poor from the rich.

[DouglasKC]

Justice Anthony Kennedy stated for the court that "the overwhelming weight of international opinion [is] against the juvenile death penalty," and that "the opinion of the world community, while "not controlling our outcome, does provide respected and significant confirmation for our own conclusions."

In other words "Aw come on...everyone else is doing it."

[SuziQ]

Here's that Mary Ann Glendon piece!

[strange1]

the overwhelming weight of international opinion [is] against the juvenile death penalty

It's now all to well know the penalty's that the Islamic fundamentalists. So, should that become the "international opinion" will we then begin to behead those who do not belive in the "repbulic"?

Waaay too slippery a slope for me.

[1stFreedom]

What's wrong with the Supreme Court deciding cases from other countries, for that matter? Why not have them rule that the Chinese Government cannot use slave labor?

Hmm, maybe because the laws, constitutions, etc, legal structures are different, and this Supreme Court is not part of those systems? Think that has anything to do with it?

[KarlInOhio]

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

I never gave my consent to the powers exercised by the German government, so any powers the US courts exert over me based on those laws are not "just".

[cpdiii]

The only reason they will ever look to foreign law is they can not find the basis for a decision "they want" based on the Constitution of the United States. The arguments on a case are presented by the opposing sides to the court. It is the courts "sworn duty" to then decide based on our law and our constitution. Any jurist that would rely on foreign law and decisions needs to be removed from the court.

[stan_sipple]

if world wide opinion and practices count how about whipping little delinquents a la Singapore?

[Still Thinking]

Bump for later review.

[Still Thinking]

"The Accidental Jurist"

[Savage Beast]

I'm sure you could learn a lot from judges in Iran, North Korea, Syria, and Zimbabwe, Stephen. Be sure to read their rulings.

And, what the hell! Why the time restrictions? Check out the rulings from the Third Reich, Pol Pot's Cambodia, and the Stalin regime in the Soviet Union. You never know what you might learn.

What a lunkhead!

[Savage Beast]

Yes. And what about stoning adulteresses and death by wallfall for homosexuals! And--gee whiz!--we could resurrect crucifixion, burning at the stake, and execution by exposure to wild animals! Bryer's onto something! Hell! We could bring back the Colloseum!

These morons don't seem to understand that the U. S. Constitution is a unique document and that U. S. law is based on the Constitution--not on foreign law.

What a bunch of jackasses!

[Let's Roll]

And as Judge Roberts pointed out during his inquisition - foreign judges aren't appointed/elected by the American people. In theory at least, we can impeach our own federal judges or force our elected representatives to do so - right, fat chance.

There would be no chance if we allow ourselves to be ruled by foreign judges.