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Justice Ginsburg delivered a speech at American University the other day.  She gave a full-throated defense of the use of foreign law by the Supreme Court. 

Personally, I find her justifications quite confusing. She points to current laws, parts of the Constitution and quotes from the founders that refer to the existence of International Law. She considers these to be in support of the use, and citation of, foreign law in U.S. Supreme Court opinions.

But they are not; all of that merely acknowledges there is a body of international law, and we are, of course, involved  in international law. No one has ever questioned whether the United States should participate in  international law, or international law activities. No one has ever suggested that our courts refuse to enforce international law, or that we refuse to cooperate in the development and enforcement of that body of law.

What people object to is the use of foreign laws and court decisions as reasons for ruling in U.S. cases. They object to  treating a foreign decision as having weight – of being legally persuasive – when deciding purely U.S. matters.

For  example – many bodies at the U.N. favor abortion. If an abortion case comes before the Supreme Court, should it be persuasive that the U.N. favors it? Ginsburg would say yes; she would accord their position the weight of a persuasive law review article. She quotes Elena Kagan’s testimony approvingly:

 …she [Kagan] observed, on a point of U. S. law, foreign decisions do not rank as precedent, but they could be informative in much the same way as one might gain knowledge or insight from reading a law review article.  “I’m troubled,” a Senator told her, that she “believes we can turn to foreign law to get good ideas.”

First of all, law review articles can change the outcomes of cases, and have been given great weight in the past. So it is no small thing to give foreign law the status of a law review article. It would be a remarkable change in legal practice. If the court were to follow this practice, the scales will be tipped in a certain direction. Foreign law will then be an extra arrow in the quiver of any litigant. In close cases, it may be used as a tie breaker. It is bound to alter the outcome in many cases.

Until now, the law review articles cited have generally been articles about U.S. law.  But foreign law develops and is shaped for conditions that might differ wildly from conditions in the U.S..  Matters of U.S. law are supposed to be settled based on what people in this country think about the matter; on our traditions and mores. Not what people overseas think. Essentially, Ginsburg is suggesting giving foreigners a say whenever U.S. legal matters are considered. Again, that is a remarkable change.

Second, there is an element of “follow the herd” here. Is the court supposed to follow the herd? Is it supposed to conform our laws to whatever the global crowd is doing at the moment? Or is it supposed to independently judge each issue in light of  U.S. laws and traditions? As your mother taught you, if everyone else is jumping off a cliff, that doesn’t mean you should. What if those other countries are wrong?

Third, as Justice Scalia has said, the way the court tends to use foreign law is deceptive. In the Roper case, he said they liked to “look out over the crowd to see their friends”. The liberal side of the court is very selective about the foreign sources they use: “See, France is doing it, and Germany is doing it, and Italy is doing it. Therefore we should do it too“. But as Scalia  pointed out, there are  over a hundred other countries that are all doing various things. Why didn’t the court mention them? Why didn’t they do a survey and let us know that x% decide this way, and y% decide the other way? The answer: because they pick out the countries who have positions they like; they refuse to mention the others.

Fourth, the attempt to use foreign law often occurs when the Court abandons its traditional role as an interpreter of laws and strikes out on its own, as a super-legislature. Kagan said she would take “good ideas” wherever she could find them. But searching for “good ideas” to crystallize into law is the job of legislatures, not judges. Judges are not supposed to be hunting around for good policy ideas.  (Sure, some public policy is made by courts, but that should be around the edges, not the centerpiece). Judges are basically there to interpret what the legislature has done. So beware of judges who go on searches for the best thoughts on the substance of a matter, rather than the best thoughts on how U.S. law should be interpreted. And of course other nations have almost nothing to say about U.S. legal interpretive techniques; but they have lots to say about policy matters. Beware, beware.

The liberal faction’s desire to use foreign law comes down to this: there are several sources of liberal law in the world. Europe is one of them, the United Nations is another. Both are routinely liberal. If Europe were a bastion of conservatism, and the United Nations a hard right organization, the liberals on the court would have nothing to do with them or their opinions. Foreign law would instantly become anathema to them.

If the members of the court point to foreign decisions and give them weight in U.S. courts, what redress does the public have? Presumably we could bring pressure on those domestic judges the court cites, but we have no power over foreign judges. It borders on a disrespect for democracy if unelected judges of our Supreme Court can bind the entire nation based on what foreign judges think about a matter. To a certain degree, it de-legitimizes any decision that is based on foreign decisions. 

It almost appears as if Ginsburg et. al. want to avoid the values and traditions of the strong center-right character of this nation, and impose liberal solutions that do not really have the support of the American people.

That is not a  good idea.

No one is trying to slight other countries. I don’t expect them to use U.S. law in their decision making. No one is saying other countries are not important. No one is saying that international law is not important. No one is saying that foreign law can never be used in U.S. courts. It is, as always, a matter of degree. Foreign law can be used – sparingly, with great care and even reluctance. But that is not what Ginsburg wants. She wants to be able to use foreign decisions all the time, to influence what the U.S. should do on purely U.S. matters.

It all gets down to sovereignty. If foreign legal decisions are allowed to have a very serious, very weighty, persuasive capacity in U.S. courts, we will rue the day. Ever so slowly, ever so steadily, we will become less able to govern ourselves; we unknowingly become locked into what people are doing overseas. If we are to give up our sovereignty in certain areas, it should come about as a result of a knowing relinquishment on the part of the people and their legislatures. Not by means of yet another stealth attempt on the part of the courts to push us in ways we don’t want to be pushed.

This obsession over foreign law is simply a clever method to get support for liberal ideas when they cannot find that support at home. 

 It’s that simple.

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