The ever impressive Ann Althouse, of the Althouse blog and University of Wisconsin law school, has an op ed piece in the NYT arguing that within bounds, the use of foreign law in US constitutional adjudication is okay. I don't agree, but as always it is well-put, here. (I will be discussing this issue today at the State Department, with Edward Swaine of the Wharton School and Vicki Jackson of Georgetown law school, as part of a constitution day event.) From Professor Althouse's op-ed:
September 19, 2005
New York Times
By ANN ALTHOUSE
LOOKING at foreign law for support is like looking out over a crowd and picking out your friends," Judge John Roberts told the Senate Judiciary Committee on Tuesday, responding to a question from Senator Jon Kyl about Supreme Court justices citing foreign law as they interpret the Constitution. "Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever."
Judge Roberts has taken pains throughout the hearings on his nomination as chief justice to present himself as the modest judge who strains over the authoritative texts and forswears all personal preference. For him, citing foreign law inevitably entails discretion. Judges will select the things that say what they already want to say and "cloak them with the authority of precedent." That violates the credo of the humble judge.
Yet to cite something in a judicial opinion is not necessarily to treat it as authoritative precedent. 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.' "
Clearly, each man spotted the parts of the poem that looked like his "friends." Yet no one thought to ask, "Why are you cloaking Robert Frost with authority?" In quoting the poet, the two men displayed some wit and elegance, and we appreciated the relief from the usual dry opinion.
Last January, at a university function, the two justices debated the question of American judges citing foreign law. Justice Breyer said he and his colleagues needed to get out more and expose themselves to what different people think about things. Foreign judges "are human beings," he said, and when they've worked through a problem that's "similar enough" to an issue that arises in the interpretation of the Constitution, why shouldn't he read it? And if he reads it and finds it helpful, what's wrong with citing it?
The issue became notorious in March, when Justice Anthony Kennedy took account of foreign laws in determining that it was cruel and unusual punishment to execute someone for a crime committed as a juvenile: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." For that, he endured calls for his impeachment. What is so alarming about American judges' reading and citing foreign law? It scarcely seems possible that they would blunder into imagining that the opinions of foreign courts are binding precedent.
Perhaps we prefer the more restricted judge, closed up in chambers lined with American texts, denying himself the indulgence of literary allusions and citing only the binding precedents, lest it appear that he gave too much weight to something he found merely interesting. John Roberts offers to be that man, to take his overflowing intellectual gifts and submit to the rigorous practices of that cloistered life.
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. There is, I suspect, no ideal judge, but there is an ideal court: one composed of a variety of judges, compelled to talk to each other.
(Ann Althouse is a law professor at the University of Wisconsin.)