Wednesday, April 15, 2009

Justice Huggy Bear

Speaking last week, Justice Ruth Bader Ginsburg defended the use of foreign law by American judges:
"I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law," Justice Ginsburg said in her comments on Friday.

The court’s more conservative members -- Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas -- oppose the citation of foreign law in constitutional cases.

"If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge," Chief Justice Roberts said at his confirmation hearing. "And yet he’s playing a role in shaping the law that binds the people in this country."

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.
This is crazy, as I showed four years ago:
America was founded as a rejection of European law, specifically the laws of England. Our Constitution differs from foreign law in myriad ways, many of which -- the First Amendment for example -- give U.S. citizens significantly more freedom than Europeans even today. Does the Court think we must water-down the rights of Americans to match Europe?
Mark Steyn agrees, as does Ed Whelan. At best, U.S. judges use foreign law as a flaky fudge.

Ginsburg's remarks got even more bizarre--and telling:
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."
Two points: First, as David Bernstein at Volokh observes:
Really, who cares? Justice Ginsburg's job is to get American law right, not to influence the rest of the world's law.
Second, Ginsburg has unintentionally revealed why she supports foreign law in U.S. jurisprudence, and it's a common liberal motivation: She wants to be loved. If we must choose, conservatives would rather our government be effective.

It's worth reading the persuasive "Fisking" of Ginsburg by David Bernstein, Orin Kerr and Ilya Somin over on the Volokh Conspiracy.

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