Thursday, November 10, 2005

Attorney General Alberto Gonzales on foreign law in US constitutional adjudication

Thanks to the finest of our Supreme Court reporters, the Washington Post's Charles Lane, for passing along to me, here, an address by Alberto Gonzales (right), US Attorney General, at the University of Chicago Law School, attacking the use of foreign law in US constitutional adjudication. Although much of the address repeats arguments developed elsewhere, it is striking in at least three aspects.

First, some might be surprised and unhappy that the AG would attack particular justices - Justices Breyer and Kennedy - by name, even given the constant invocations of respect that AG Gonzales uses. The problem is, though, these justices have in effect forced the issue. If it is appropriate for other branches of government, whether the executive or the legislature, to criticize what they see as a constitutionally profoundly flawed methodology of judging - and surely that is appropriate to the political branches - then there is not way to do it without criticizing the justices actually engaged in the practice. At that point, how does one avoid dealing with the methods of particular justices - what does one say, a certain justice (not to be named) once cited the high court of Zimbabwe. If there is a loss of decorum merely in criticizing the practice associated with particular justices, it is because the justices have themselves forced the issue.

Second, this is the first account and criticism of the practice that takes up the issue of what this means for lawyers who must advocate on one side or another - in this case, very appropriately, the lawyers in the Department of Justice. How do you respond when justices take up a method you believe is constitutionally dubious, but which invites you to engage in it? When you want to support, for example, your view favoring parental notification in abortion by minor girls, do you cite to European practice because you can find favorable materials there, even though you think the methodology constitutionally abhorrent? And knowing that the other side, if it finds favorable material, will not fail to cite it? (Much less convincing in the AG's talk is the criticism that the practice creates piles and piles of materials to be absorbed and gone through - although, as Chuck Lane pointed out to me, at some point practicality and principle meet, and because you can't get through the piles and piles, inevitably you cherry pick and, as he says, you cherry pick especially on the basis of the languages you know.)

Third - and this is a point that belongs entirely to the Washington Post's Charles Lane - the speech points to ways in which the Supreme Court justices are engaged not merely in minor excursions into foreign affairs, but developing what amounts to a judicial branch foreign policy. I leave it to Chuck to tell us how and on what basis, but he has made the powerful point that, in this matter of foreign and unratified international law citation, Justices Breyer and Kennedy are, in effect, creating a foreign policy of the Supreme Court. What is it about? Well, take a look at Justice Breyer's new book as well as Anne-Marie Slaughter's A New World Order, and it seems fairly plain that Justice Breyer has in mind an active, global role for the US judiciary in setting the terms of both economic globalization and political globalization, or global governance. To what extent he regards the Supreme Court as a court for the world, one in which to develop global standards as well as discipline the hyperpower within a system of global governance remains, somewhat, to be seen. One trusts that Chief Justice Roberts and perhaps soon-to-be Justice Alito will temper or, better yet, kill the trend.

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