THE INFLUENCE OF FOREIGN LAW…. For several years, if a Supreme Court ruling even acknowledges international legal trends, many conservatives throw quite a fit. In 2005, then-House Majority Leader Tom DeLay raised the specter of impeaching judges who cite foreign law in court rulings. The idea didn’t go anywhere, but conservative ire has only grown since.
Justice Ruth Bader Ginsburg doesn’t understand what all the fuss is about.
In wide-ranging remarks [at the Moritz College of Law at Ohio State University], Justice Ruth Bader Ginsburg defended the use of foreign law by American judges…. Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.
“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she asked.
She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.
The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”
This is hardly radical stuff. No one is suggesting courts impose foreign law on U.S. citizens. If, however, jurists want to take note of international legal developments, or consider a foreign judge who’s offered some wisdom about a relevant legal controversy, why should U.S. judges necessarily bury their heads in the sand?
Not surprisingly, several conservative bloggers are fuming over Ginsburg’s remarks. One item, typical of the criticisms, argued, “Having foreign laws guide American law is unconstitutional…. The justices are wrong in following foreign law — or even referring to them (with the exceptions being the Magna Carte and British common law).”
Publius’ response rings true: “First, he’s wrong — there’s no constitutional provision (or decision that I know of) outlawing any sort of ‘guidance.’ But second, notice that ‘British common law’ is ok for him. To translate — foreign law is ok when it helps establish originalist interpretations. Otherwise, not so much. The fever among conservatives on this issue just continues to baffle me. It’s an almost pathological aversion to the broader world — and it’s hard to understand this as anything other than extreme ideological nationalism.”