The use and abuse of foreign law by the U.S. Supreme Court.
Apr 10, 2006, Vol. 11, No. 28 • By JEREMY RABKIN
In today's world, appealing to foreign precedent is much like appealing to the United Nations. Anne-Marie Slaughter, dean of the Woodrow Wilson School at Princeton, published a whole book in 2004 explaining that "global governance" in our world would not be achieved by a world parliament but by a network of judges. In Roper v. Simmons, the Court's 2005 capital punishment case, the Court actually invoked a U.N. convention on children's rights that the Senate has never ratified and a provision in the U.N. convention on civil and political rights that the Senate expressly repudiated.
In her South Africa speech, Justice Ginsburg tried to frame such practices as looking to foreign law to "add to the store of knowledge relevant to the solution of trying questions." It is much closer to the truth to say that what the Court is doing is shifting its perspective from America to the world at large, so that positions with less support in the United States can still be viewed--in a global context--as majority or dominant positions. Rather than looking to thoughtful analysis of "trying questions," the Court, in effect, takes a poll--on an international basis.
In all three recent cases where foreign opinion was cited, the Court faced the difficulty of explaining why it was abandoning contrary constitutional rulings from as recently as the 1980s. The Court tried to say that opinion had since changed, as some states had changed their laws on such questions as whether tests of mental deficiency would be relevant to imposition of the death penalty. Not enough states had actually changed their laws, so the Court, in effect, enlarged the count to include foreign jurisdictions. Red states and blue states might be evenly balanced at home but 25 nation-states of the European Union could tip the balance, if counted.
In one of its capital punishment cases, as Justice Ginsburg noted, the Court had received amicus briefs from Nobel Prize winners such as Jimmy Carter. What has this to do with legal analysis? It is simply a way of appealing from the views of American voters to those of electors for the Nobel Prize--the sort of people who regard President Bush as a reckless cowboy and Jimmy Carter as a distinguished statesman.
To see the partisan character of appeals to foreign authorities in this setting, one need only think of a close analogy. If foreign law, why not religious law? Why not the canon law of the Catholic Church? As it happens, the U.S. Supreme Court has cited "canon law" in more than two dozen cases over the past 200 years. Most of the references are entirely incidental, but a few cases in the early 20th century actually engaged with Church sources, among others, in wrestling with the meaning of "due process." More recent cases have insisted that secular courts cannot enter into disputed questions of church law when asked to determine claims about ownership of church property or tenure in religious office.
Suppose that Catholic or conservative justices began to regularly cite canon law on the most controversial constitutional disputes--on such matters as family law or medical ethics. These justices could insist, as Justice Ginsburg does, that such "foreign opinions are not authoritative" and "set no binding precedent for the U.S. judge" but simply "add to the store of knowledge." In today's world, the protests from liberals would be deafening, because such soothing abstractions would be seen as disingenuous. To treat canon law as any sort of "persuasive authority" would be intensely divisive. The "foreign opinion" that liberals prefer has no more inherent relevance or authority, however. We could save a lot of needless dispute by agreeing in advance that all sides will play by American rules.
WHICH BRINGS US TO THE STRATEGIC OBJECTION. In practice, the appeal to foreign law in most cases will be an appeal to European standards, even if the latter are dressed up as world standards. Europeans have pioneered the practice of transnational judicial gatherings, so that judges may lobby each other or encourage each other on supposed "common" problems. That is how the European Court of Justice helped win the acquiescence of national courts to the otherwise quite startling doctrine that European treaties should have legal priority over national parliamentary enactments and even over national constitutions.
When it comes to capital punishment, not even judges had to act in Europe. The Council of Europe, a diplomatic rather than judicial body, successfully pressured all European governments to abolish capital punishment, even though public opinion in a number of European countries remains sympathetic to the death penalty. To look at European law is not to look at the outcome of a rolling survey but the acclamation from a carefully drilled caucus. It is not a "trend" but a rigged vote.