We the People
"I frankly don't understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law." So said Justice Ginsburg on Friday, reigniting a controversy that elicits passionate reactions from both sides of the isle.
Ginsburg, in an attempt to clarify and perhaps tamp down potential outrage said, "...the controversy was based on the misunderstanding that citing of a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced..."
Should that explanation assuage concern? Influence is influence; isn't it? Are not opinions based on, or at least persuaded by, foreign courts the logical extension?
Justice Roberts said during his confirmation hearing, "If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge, and yet he's playing a role in shaping the law that binds the people in this country."
Isn't Roberts right?
Is it not also right that decisions handed down by foreign courts are crafted in an entirely different context? Can U.S. judges possibly sort out the dissimilarities in government, culture, morality, standards of decency, etc., not to mention the unique circumstances that gave rise to a particular foreign law or constitutional provision?
Don't we run the risk of causing the same chaos in our legal system, as we've inflicted on our financial system, by making the rules of the game unclear and ever-changing?
What's the etiology and/or justification for this practice?
Ginsburg said, "You will not be listened to if you don't listen to others." Aren't her words really part of a phenomenon of the past generation or so where it has become fashionable among many intellectuals to feel guilty about America's position in the world—to be overly, and often inappropriately deferential to our foreign brethren, as a sign of enlightenment and sophistication?
On the surface, it is hard to argue with Ginsburg's comment. Listening IS a two-way street. Unfortunately, she mis-prescribes the medicine for better international citizenship. If we have, in some instances, become out of touch with the international community, that is for our legislature, representatives of the people, to decide and act upon. To place that responsibility in the hands of judges, or for judges to seize it, is to move us further down the path to confusion and disorder. Of course, for many politicians, judicial activism is simply a convenient way to circumvent the will of the people and achieve tectonic societal change without having to endure the scrutiny of a controversial vote.
Isn't that what happened with Roe vs. Wade? Don't the preponderance of objective legal scholars agree that Roe was decided on a fictitious right to privacy in the 14th amendment.? That doesn't necessarily mean Roe is incorrect social policy; it just means the system was bastardized and compromised.
Judicial abuse of this sort is frequently decried by outraged conservatives. Liberals, commonly, are not as critical. In fact, they are mostly supportive. Unlike most conservatives, Liberals tend not to be strict constructionists. They see the Constitution as a living document, subject to varying interpretations in changing times.
Liberals should not be so sanguine, however. Judicial activism, and more specifically, the citing of foreign precedent, can cut both ways. What's to stop a far Right U.S. court from pointing to punishments handed out in Singapore or the Middle East as anything but cruel and unusual? What about abortion rights, the litmus test for nearly all Liberals? The U.S. is one of only a handful of countries in the world to ostensibly allow abortion on demand. What if a conservative court were to cite global consensus as a means of overturning or dramatically weakening Roe? When one goes shopping for a legal diagnosis, surely there is something to be found somewhere in the world.
To be fair, Ginsburg is not alone. A majority of recent/present day justices have written and/or joined opinions that cite or rely on foreign materials. That includes so-called conservative Justices Rehnquist, Kennedy, and O'Connor.
It should also be pointed out that foreign citations have historical precedent, including an 1855 case that said the Magna Carta is relevant.
But as we know from Dred Scott and Plessy, and a host of other infamous decisions, precedent does not always connote correctness.
There is a legitimate worry in this country that the Supreme Court is losing its place of prominence among foreign courts in modern democracies, and I think that supporters of the Court's foreign law citation look at the practice as a way to waive our hands in the faces of those countries and say, Hey, remember us? We listen to you, and it's about time you start to listen to us again! However, I also agree that the practice puts a dangerous amount of power in the Court's hands and gives license to look to a varied and diverse international legal landscape merely to seek precedent that conforms with desired outcomes. I for one cheered when Kennedy reached my desired result in Lawrence v. Texas and invalidated sodomy laws, but I am wary of his reliance on the European Court of Human Rights, an entity whose influence on the U.S. is not prescribed in the Constitution.
But I don't wish to do away completely with the Court's ability to cite to foreign law, as it could be useful in certain instance. I can see applications where issues may depend on foreign law, although these necessarily are few and narrow, since, as this blog explained, citations to foreign precedent leave us without accountability or a method for systematic evaluation.
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I definitely agree that many worry about the court losing its place of international prominence; however, I personally don't consider such worries to be well-founded.
It is understandable (though not appropriate in my view) how one might conjure up a justification for looking to foreign materials in cases that have international implications--such as treaties, or perhaps even antitrust disputes. Still, once a judge wonders outside the boundaries of our Constitution and laws, the results may be very unpredictable, and even more undesirable.
Let's let legislatures legislate and judges interpret.
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