A Decent Respect for the Opinions of [Human]kind

Supreme Court Archives ^ | 2/7/06 | Ruth Bader Ginsburg

[bondjamesbond]

Another case in point, one in which I was a participant, involving civil litigation: Interpreting U.S. Supreme Court precedent, a divided U.S. Court of Appeals for the District of Columbia Circuit held in 1989, during my tenure on that court, that foreign plaintiffs acting abroad - plaintiffs were Indian family planning organizations - had no First Amendment rights, and therefore no standing to assert a violation of such rights by U.S. officials. In particular, the Indian organizations complained of a condition on U.S. grant money: the recipients could not engage in any abortion counseling, even in a separate entity funded by non-U.S. sources. In dissent, I resisted the notion that in an encounter between the United States and the people of another land, "the amendment we prize as 'first' has no force in court." I expressed the expectation that the position taken in the Restatement (Third) of Foreign Relations would one day accurately describe our law. "[W]herever the United States acts," the Restatement projects, "'it can only act in accordance with the limitations imposed by the Constitution.'"

But it appears that the U.S. Court of Appeals for the District of Columbia Circuit does agree with you, Justice Ginsburg.

In any case, this is another case that has to do directly with relations between countries. This is an area where foreign law has been part of the equation specifically allowed for in the Constitution.

[bondjamesbond]

Returning to my main theme, I will recount briefly and chronologically the Supreme Court's most recent decisions involving foreign or international legal sources as an aid to the resolution of constitutional questions. In a headline 2002 decision, Atkins v. Virginia, a six-member majority (all save the Chief Justice and Justices Scalia and Thomas) held unconstitutional the execution of a mentally retarded offender. The Court noted that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved."

It appears that the governments of China, Indonesia, and much of the Middle East and Africa have no problem at all with executing the mentally retarded. They seem to be pretty OK with executing just about anybody, actually.

So how does that square with this supposed "overwhelming disapproval"?

And if the governments of the various European elite states have long since banned executions in general, how are we to determine their opinion on the execution of the mentally retarded? Does one just talk to one's German mechanic, French baker and British nanny to discern the presumptive judicial opinions of European judiciary? After all, the question would never come up if they have no executions in the first place?

Maybe we could just buy the US Supreme Court subscriptions to Le Monde, The Times of London and Der Spiegel, and they can just glean this opinion from the imperfectly understood translations of those editorial pages.

Or maybe we want to look back to the days when the Germans had widespread executions... On second thought, maybe not.

[edsheppa]

Justice Scalia counsels: The Court "should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."

Well sure, but they often treat US law or precedential court decisions the same way - pick and choose to support a preferred result.

[Squantos]

She's one of them thar domestic enemies we were briefed about.........

[Lurker]

Spot on there Jeff.

This waste of skin took an oath before God that she would 'support and defend' the Constitution of the United States.

She's just shown in great detail that she can't or won't adhere to that oath therefore she should be removed from her position on the SCOTUS, preferably by means of Impeachment.

L

[Jeff Head]

That's exactly what should happen...and it's about time that people in positions of trust and authority stood up and said so...and then took measures to see it be so.

Forget the polls, forget the "political fallout" with the left who will undercut, spit on, and try and defeat you in any case...and just do what is right. I feel that that attitude and action alone, on this issue, on immigration, on trade, on health care, on energy, on defense, and on any other issue of any import will earn the leaders who do so the undying respect and commitment and loyalty of the majority of Americans.

Best FRegards my FRiend.