Last week Justice Antonin Scalia did something rather brave—at least in Washington terms: He gave a speech to people who disagree with him. The Supreme Court justice told more than 1,000 international lawyers—members of the American Society of International Law—something they didn't want to hear. He argued that the discussion of foreign cases in U.S. constitutional opinions is "wrong," perhaps even unconstitutional. No surprise that Anne-Marie Slaughter, president of the society, was quick to promise "a response."
The Scalia showdown illuminates a festering dispute that's fast becoming the court's own transatlantic divide: When is it appropriate for the Supreme Court to discuss foreign legal materials? And while Scalia's answer is "nearly never," other members of the court see comparative constitutionalism as enriching and uplifting. To a court already divided along every ideological position imaginable, add judicial foreign policy as the latest fault line.
Scalia is not alone: His jeremiads on the subject have inspired something of a Republican crusade. House Republicans reacted angrily to last spring's Lawrence v. Texas, a decision that not only struck down a ban on homosexual sodomy but also had the nerve to cite a European case in the process. They began peppering their speeches with comments like "The American people have not consented to being ruled by foreign powers or tribunals." And Tom Feeney, the representative from Florida who made that particular remark, is co-sponsor of an antiforeign-law resolution titled the "Reaffirmation of American Independence." Justices who ignore the resolution, he says, "may subject themselves to the ultimate remedy, which would be impeachment." The Web site Conservative Alertsagitates in similar fashion: " 'No More' to these 'internationalist' Supreme Court Justices," it says, "they could be IMPEACHED for favoring OTHER countries' laws instead of the U.S. Constitution."
Legal "comparativism" in the Supreme Court is staging a comeback. In Atkins v. Virginia, the 2002 decision in which the court barred the execution of the mentally retarded, the following sentence appeared in Justice Steven's opinion: "Within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." And Lawrence,last year's sodomy decision, also used foreign materials, albeit to refute international claims made in an earlier case. In 1986, then-Chief Justice Warren Burger (a great xenophile) had argued in Bowers v Hardwick that bans on gay sex were "firmly rooted in Judeo-Christian moral and ethical standards." In Lawrence,Justice Anthony Kennedy pointed out that whatever ancient practice might have been, England in particular (perhaps under the influence of David Beckham) and Europe in general had changed their minds. Even the current chief justice, William Rehnquist, has dabbled in comparativism—discussing the Dutch experience in the course of rejecting a right to assisted suicide in 1997's Washington v. Glucksburg.
It's become a bit of a Punch and Judy show: Just about every time the court cites foreign materials, Scalia and/or Clarence Thomas dissent. In the words of Scalia, "The views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution." Or, to quote Thomas on the subject, "This court should not impose foreign moods, fads, or fashions on Americans."
Contemporary objections to the use of foreign precedent have a long pedigree in American politics: There's always been a simmering fear of foreigners tainting our leaders. In the 1790s, John Adams and Thomas Jefferson were accused of being more English or French than American, respectively, after spending time abroad. Today, the fear is that Sandra Day O'Connor or Anthony Kennedy—after one too many global judicial conferences—will go the way of Justice Stephen Breyer and become hopelessly intoxicated by foreign ways.
Part of what Scalia says is undeniably correct. There is such a thing as the misuse, and even the illegal use, of foreign law by American courts. Were the Second Circuit Court of Appeals to announce a legal obligation to obey the European Court of Human Rights, most (though not all) international lawyers would join the crowds storming the Bastille. But the Supreme Court simply hasn't done that: It has not deferred to or followed foreign cases in statutory or constitutional cases. Scalia and the House Republicans, for effect really, are mixing up the difference between listening to foreign ideas and obeying foreign commands. Scalia is like the prohibitionist who confuses drinking with alcoholism. His narrowly correct point stigmatizes a range of reasonable, indeed salutary, judicial behavior.
Everyone on the Supreme Court (including Scalia) agrees that foreign law is relevant—if not vital—to the international-law cases that land in U.S. courts. Treaties, for example, are somewhat like a contract between nations and therefore joint projects. The use of foreign law to help ascertain a treaty's meaning is uncontroversial.
Similarly, there is simply nothing constitutionally suspect about the under-recognized "judicial shout-out." Judges are not unlike rappers and bloggers: They like to pay their respects. Rapper 50 Cent in Ghetto Quran Lyrics offers:
Shout out to Clanvis and Clutch, Bob Dre, Black Will
If the flow don't kill you the Mac will
Which is pretty much the same thing Justice Breyer does in the 2000 case Nixon v. Shrink Missouri Government:
The approach taken by these cases is consistent with that of other constitutional courts facing similarly complex constitutional problems [after which he cites European and Canadian Courts].
Both stanzas are basically meaningless as a legal or lyrical matter, but both pay respect. For Justice O'Connor this is what matters most about citing foreign materials: It "creates that all-important good impression." The judicial shout-out, while without legal meaning, is a useful courtesy. If you're the world's senior constitutional court, it doesn't hurt to reach out to those more junior courts, and say, "we hear ya," even if we proceed to ignore their reasoning. This is especially true for the fledgling constitutional courts whose development the United States has tried to encourage for the last several decades. The shout-out, in short, is how the court increases its intellectual influence.
Third, while good judges copy, great judges steal: American courts have been borrowing ideas from other legal systems since the beginning. The 1877 landmark Supreme Court opinion in Pennoyer v. Neff is a sterling example. In a case taught in every first-year procedure class, Justice Field borrowed concepts from public international law and made them part of the due-process clause of the United States Constitution. (More specifically, Pennoyer tapped international concepts of territorial sovereignty to rule states judicially powerless outside of their borders.) As Pennoyer shows, there's a difference between relying on alien cases and simply borrowing ideas from clever foreigners. The latter implies no future obligation.
The final and perhaps most important reason to discuss foreign precedent is to promote judicial honesty. What Scalia and the House Republicans advocate is a kind of judicial mind-control: They want judges to banish sinful, foreign thoughts when deciding cases, in exchange for a pure focus on that founding moment in Philadelphia. But this contemplates a level of public control over the judicial psyche that is unrealistic and, frankly, unhealthy. The big constitutional cases that reach the Supreme Court are difficult—usually without obvious answers from text of the Constitution or its history. Faced with these kinds of problems, judges, as Richard Posner puts it, will never be "potted plants." They will (and should) exercise their own judgment. That judgment will inevitably be influenced by American precedent, but also, let's be honest, by the novels they read, their political friends, and their visions of the ideal society and the good life. If a judge dreams of making the United States more like modern Europe or medieval England, her decisions will reflect those aspirations. So, why not come clean, confess to the charisma of foreign ideas, and err on the side of judicial candor?
Unfortunately, if the congressional resolutions are any sign, the flap over foreign citation will get stupider before it gets smarter. Which is a shame because claims of "foreign taint" are as lame a libel today as they were in the 1790s. We should ask: Is someone as intellectually stubborn as Sandra Day O'Connor realistically in danger of corruption by foreign influence? Pas question.