Citing foreign law

CITING FOREIGN LAW…. One of the more common complaints in conservative legal circles is that Supreme Court justices will, from time to time, cite international legal trends and precedents in their rulings. This, in reality, isn’t worth raising a fuss over, but it tends to cause the right to throw fits.

Among those most offended by this is Justice Antonin Scalia, who argued in November, “I fear the courts’ use of foreign law in interpreting the Constitution will continue at an accelerated pace…. We must cry ‘foul’ whenever the court dabbles in its fondness for the use of foreign law to justify its own excesses.”

It was interesting, then, to see the Washington Post‘s Al Kamen note a Scalia citation in the Caperton ruling.

[T]he Loop 2009 Legal Citation of the Year goes to Justice Antonin Scalia, writing in dissent to Monday’s ruling that state court judges may be obliged to recuse themselves from a case if they’ve received large campaign contributions from one of the litigants.

Scalia wrote that a “Talmudic maxim instructs with respect to the Scripture: ‘Turn it over, and turn it over, for all is therein.’ The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935).”

Scalia, we seem to recall, hasn’t been a big fan of international law….

No, not usually.

Rick Hasen added, “As I remarked when Justice Scalia made reference to the sanhedrin during oral argument in Namudno, Justice Scalia does not mind citing foreign law, so long as it is a few thousand years old.”