Should the Supreme Court Consider the World Around It?

by TChris

Conservative critics of the Supreme Court have derided its occasional citation of cases from foreign courts to make a point about the law of the United States. "Who cares what the rest of the world thinks?" they ask mockingly. "Our law is ours alone."

Law Prof. Ann Althouse points out in a NY Times op-ed piece that the dispute is much ado about nothing. Careful thinking can be guided by a variety of sources, not all of which are precedents from American courts:

A decade ago, for example, Justices Antonin Scalia and Stephen Breyer, arguing about the meaning of the separation of powers, traded quotes from Robert Frost's poem "Mending Wall." Justice Scalia wrote: "Separation of powers, a distinctively American political doctrine, profits from the advice authored by a distinctively American poet: 'Good fences make good neighbors.' " Justice Breyer countered with: "One might consider as well that poet's caution, for he not only notes that 'Something there is that doesn't love a wall,' but also writes, 'Before I built a wall I'd ask to know / What I was walling in or walling out.' "

If poetry can inform a judicial decision, why not the writing of a foreign court? Do we want our Supreme Court justices to ignore everything around them except their dusty precedents? Prof. Althouse reasonably suggests that the justices should not live that "cloistered life," and takes issue with John Roberts for pandering to the right wing view that American courts should not be open to (rather than bound by) the thinking of courts in other nations.

I deeply respect Judge Roberts and the conception of judging that he will bring to the court. But I also think that he will need to interact with other judges who do things differently, who open their minds to the opinions of the world and bring some fresh thinking back to constitutional interpretation.

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    Re: Should the Supreme Court Consider the World Ar (none / 0) (#1)
    by roger on Sat Dec 17, 2005 at 01:04:01 PM EST
    This seems to be such a silly argument. How can you judge where you are if you dont look at the world around you? I am NOT saying that we should be bound by foreign decisions, but we should not be blind either

    Re: Should the Supreme Court Consider the World Ar (none / 0) (#2)
    by kdog on Sat Dec 17, 2005 at 01:04:01 PM EST
    Right on Roger. I would think there is no room for closed-mindedness in the courts. If we can learn from other countries successes and mistakes, why not?

    Article. VI. Clause 2 of the US Const says that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land..." So international law is very important and the treaties we ratify become the Supreme Law of the land. Considering we have ratified the Vienna Convention on the Law of Treaties, we have a duty to support and not undermine any Treaty/Convention/Covenant/etc...we sign and/or ratify. Bush recognized that when he followed the ruling of the ICJ with regard to Mexican nationals on death row. (Then he promptly pulled us out of the ICJ.) The interpretation of the terms of the treaties stems from international precedent. In addition, the U.S. has benefitted from international law with regard to piracy, maritime commerce and war tribunals. It would be foolish for us to ignore jus cogens, or customary international law, then expect others, such as so called “enemy combatants,” to act in accordance with international human right’s norms. We can’t have it both ways.

    Re: Should the Supreme Court Consider the World Ar (none / 0) (#4)
    by roy on Sat Dec 17, 2005 at 01:04:01 PM EST
    Using a foreign court decision to illustrate or clarify a point you would have made anyway should be fine. It seems like that's all the SC has done so far. There's a "too much" point for relying on any source outside our law, but adding a foreign court reference to an otherwise sound decision doesn't invalidate the decision. I think it's percieved as a problem only because citing a poem is clearly just illustrative, but citing a court decision seems much more serious and binding even if it isn't. Republicans have fed this misperception, taking advantage of "one world order" fears.

    Re: Should the Supreme Court Consider the World Ar (none / 0) (#5)
    by Lis Riba on Sat Dec 17, 2005 at 01:04:01 PM EST
    I'll confess, I wish somebody asked him a followup question about English Common Law...

    Re: Should the Supreme Court Consider the World Ar (none / 0) (#6)
    by roy on Sat Dec 17, 2005 at 01:04:01 PM EST
    ...but I draw the line at citing foreign poets.

    Well, maybe charley can plead ignorance... The fact remains that we have incorporated international law and opinions in to our jurisprudence for as long as our jurisprudence has existed. This means, that this is not a new issue. And to say that “citation to "international" law is simply a citation to the Judge's personal preferences” is just wrong. Not only that, it ignores our own history. Look at the Paquette Habana case, or Filartiga. We have been incorporating “customary international law” for 200 years. Charley’s opposition to international law ends up being his own “personal preference” and ignores the law of the land.

    What I am saying is that to suggest that international law not be used or that it is some new liberal trick is nonsene, and better left to the likes of Sean Hannity. Here is a S.Ct. case from 1900: “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of eivilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Hilton v. Guyot, 159 U.S. 113, 163 , 164 S., 214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139.” The Paquette Habana, 175 U.S. 677 (1900). Even Bush recognized the decision of the ICJ and his administration adopted their decision. We have always used and benefitted from international law. "There is nothing new under the sun" here. With regard to international human rights, the only thing that has internationally agreed upon and risen to the level of universal agreement have been slavery and piracy. It is likely that sexual-slavery, genocide and torture will soon reach that universal level. Beyond that, there are other levels of jurisdiction and international agreement as to what constitutes human rights. The decision of what has risen to the level of customary international law is evidenced by international treaties and domestic laws. The issue of the death penalty was not “using [foreign court decisions] to control our interpretation of our constitution” as you stated in your post. We looked to those decisions to interpret international norms for purposes of cruel and unusual punishment. All of these interpretations are ultimately, under our jurisprudence, subject to the Constitution. So therefore, if we are guaranteed a constitutional right, i.e. women voting, then it trumps international law. But where there is no Constitutional right, and where international law applies, it has always been applied. My question to you is: Why do you want to change the law of our land? (And ignore the constitution?)

    Re: Should the Supreme Court Consider the World Ar (none / 0) (#9)
    by peacrevol on Sat Dec 17, 2005 at 01:04:03 PM EST
    With the increasing globalization of every day life, I think it is irresponsible to not consider the policies of foreign countries and the effects any decision may have on the relationships we have with other countries.

    Re: Should the Supreme Court Consider the World Ar (none / 0) (#10)
    by cpinva on Sat Dec 17, 2005 at 01:04:03 PM EST
    i draw the line at walt whitman quotations!

    The furor over this point seems to center on a decision about the meaning of the phrase "cruel and unusual punishment." The phrase isn't defined in the Constitution itself. So here's a question for absolutists: how do you determine what's cruel or unusual?

    Re: Should the Supreme Court Consider the World Ar (none / 0) (#12)
    by Dadler on Sat Dec 17, 2005 at 01:04:04 PM EST
    Charley, We make decisions every day about what to use and what not to use. Usually based on what is best for the larger community (women's rights), while also balancing individual freedom (abortion rights). We make those choices all the time, and the inclusion of international law is the same thing. Period. I could've easily suggested we consider blood killings as a possibility using your "exception is the rule" logic. But I don't because, on the face, it's nonsense. Abortion is the single most divisive issue in the country, it's not going away, and abortion rights aren't. It's an uncomfortable reality that won't change until our nation decides sex is more than titillation, it is education, information, intelligence. Then we might have fewer, much fewer, unwanted pregnancies. (Note: my mother was young and single in the 60's when she got pregnant. She didn't have the right to terminate, but she should have. And asking me "Well, how would you feel if she'd had an abortion?" Answer, I wouldn't have existed, so the question is moot.) You wanna force every women who gets pregnant in America to take that fetus to term, go ahead and try. It'll never happen. You live in secular America, not Catholic France.