Friday, January 14, 2005

Powerline reaction to Scalia-Breyer debate on foreign law in US courts

Powerline, picked up by Instapundit and many other blogs, has a very critical take on Justice Breyer's comments in the the debate between Justice Scalia and Justice Breyer at American University Law School on foreign law in US courts, here. Hindrocket's comments come out of the AP story on yesterday's debate - you can go directly to the CSPAN site or go to the law school website, here, to link to the archived video feed of the entire event. The law school website, here, will have a full written transcription of the event by the end of next week, which should be welcome news to scholars and others. I have posted a discussion on this blog of why the issue of foreign law in US courts is so important - Powerline is absolutely right about that - beginning here. (You can find Ann Althouse's TiVo blogging of the event here and her pickup of news of the event in the press here.)

I was one of the organizers of the Scalia-Breyer debate - I'm a law prof at AU law school - and although the AP quote was, so far as I could tell, accurate, it was taken sharply out of context. Justice Breyer was speaking in a very specific exchange with Justice Scalia about the narrowly judicial act of interpreting legal texts, and it is quite unfair to take that remark about who participates directly in the process of interpreting legal texts that have already been informed by constitutional and legislative and other democratic institutions - judges, lawyers, law students (and it was obvious to the live audience that he included students as a courtesy to the audience of law students) - as being somehow antidemocratic. He was just noting the fact that legal materials, once they have been created through various democratic mechanisms, then become subject to interpretation by the interactions of lawyers and judges. It was nothing more insidious than that. A much better summary of the event is in Charles Lane's Friday front-page Washington Post article.

I yield to no one - not even Hindrocket - in my opposition to the drawing of foreign law into US constitutional adjudication. I have a long multi-post discussion on this blog outlining the issues and critiquing Justice Breyer's views, beginning here. I have a Harvard Law Review piece coming out in February that severely criticizes Justice Breyer's position, and asking him, among other things, why, if he is willing to cite cool, progressive European law, he does not also cite Shari'a law - for example, on how many female witnesses are needed to contradict male testimony, or on whether it is required to stone gays to death. If the point is that American jurisprudence ought to take account of global trends in law, how, without hypocrisy, do you limit it to those views that just happen to be congenial with the sympathies of a progressive, Europhile US judge? Isn't it hypocritical not to take account of what is arguably the much more global movement in law, the movement toward Islamization of law in many places from Aceh, Indonesia to large parts of Nigeria? Isn't taking account of all that stuff, and not just what one's friends in Western Europe say, equally required in order to have a "decent respect" for the opinions of mankind outside our own country? I have zero sympathy for Justice Breyer's position on this, and think it an erosion not precisely of American sovereignty, but of American democracy, for which sovereignty - what Lincoln called "a political community, without a political superior"- is its bulwark and defense.

The issue is not a decent respect for others' opinions in the wide world, but instead fidelity to a particular political community, the relations of whose members are constituted literally by a constitution, by a compact among themselves, and who give power over to unelected judges not in order that they draw upon the opinions of people at large in the world, however worthy or wise their thoughts might be, but to draw upon sources that have democratic provenance and legitimacy from within this particular democratic political community, because their interpretation by judges must be and properly is undemocratic. The price of being permitted the undemocratic, countermajoritarian act of judging in a democracy is that the materials one brings to the interpretive table must be materials which arise from within the constitutional and democratic processes of that political community - those which are accountable, through the legislative and other democratic processes, to the democratic political community.

That said, however, the particular comment that Powerline zooms in on from the AP is taken out of context and quite unfair to Justice Breyer.

Justice Breyer's real problem in the debate showed in his repeated assertion that this was not a big deal, it was no different from citing Blackstone or other extrajudicial materials - Shakespeare, the Bible, whatever. His answer to his critics who rightly wonder where the practice stops is disturbingly and, I would say, entirely ad hoc. Judges who are properly doing their job will only cite foreign law in rare and appropriate cases - and it is easy to guess what Justice Scalia did with that. As in many opinions of the Breyer-Souter wing of the Court - the Sosa case, for example, supposedly reining in the rampant use of the Alien Tort Statute - Justice Breyer seems to think that good judicial sense can find the right balance, and so there is no call to create hard and fast rules for lower courts. It ignores completely how litigation actually works - lawyers who perceive that foreign law is now fair game will start citing it, judges will note that it is at least partly accepted by higher courts and will begin responding to it, not by ruling it out of court, but on a substantive basis, and within a few years it has become standard practice to cite foreign law. Lawyers won't not be able to cite it and judges won't be able to ignore it. It will just evolve into an accepted, indeed required, practice unless there is a clear rule from the top down.

It was striking to me, however, how many of the professors I talked with after the debate, who despise Scalia and substantively think the entire world should have a kind of common global jurisprudence, thought that Scalia gave much the stronger argument.

I will have more to say on the debate and its implications later.

(Update, Friday, January 14, 2005: I've made some minor grammatical edits.)

(Update, Friday, January 14, 2005: In addition to Charles Lane's outstanding Washington Post account in today's paper, see also the MSNBC story, here.)

(Update, Saturday, January 15, 2005: Full written transcript of the debate available here.)


Author said...

Chief Justice Rhenquist recently asserted that a justice cannot be impeached for a judicial act. I think subordinating the Constitution in any way to foreign law is such an impeachable offense. It violates in the most profound way the oath of office that a justice takes. It is a subversive act that the Senate has - by virtue of their duty to protect the Constitution - an obligation to punish.

pikkumatti said...

Your point about which sources of international law are to be used is perfect, Prof. Anderson. Recent SCt opinions that are "informed" by foreign law skip the necessary question: Why should this foreign country's law be persuasive here?

Assuming arguendo that foreign law should inform courts in the USA, one would think that some minimum standards should apply. At a minimum, it should be required that the foreign source of law should "hold" the same "self-evident" truths that defined (and hopefully still do define and distinguish) the USA. Perhaps the asserted country should also have a government of enumerated powers, a Bill of Rights, representative government, etc., so that the law we are importing at least has a chance of being fair and reflecting the will of that people. If I took a couple minutes, perhaps I could think of some other minimums. But, of course, finding countries such as these may be a tall order, especially for those judges shopping for "enlightened" foreign law concepts as the genesis of fundamental constitutional rights here.

This same approach could be used with United Nations resolutions. Should the US be bound by, or persuaded by, or even seek, UN resolutions enacted by (many, if not nearly all) countries that do not adhere to our defining priniciples? The question answers itself, I think.

Eric said...

Consistent with what the moderator mentioned yesterday, the logical extension of your position is that state law judges should not look to other states for assistance in resolving issues the legislature has either declined to addressed, or addressed in such a poor fashion that no two people can agree on what they meant. Since the law and the political community from each state differs, it is anti-democratic for a judge in one common law state to look to another.

Similarly, state court judges should refrain from looking to the federal system (when not addressing an issue bound by U.S. Supreme Court precedent or federal statute) for guidance, as federal laws reflect an entirely different political community.

Why then couldn't state supreme court judges/justices, not strictly bound by their own precedent other than through the joke that is stare decisis, disregard prior decisions on the basis that those decisions reflect a different democratic culture and that the state has changed significantly since that decision? Or because the composition of the elected state supreme court is now made up of members from x political party instead of y political party?

I think what Justice Breyer's position gets at, fundamentally, is that in a narrow band of cases, there is a "truth" out there that transcends political and cultural boundaries. Humans are humans are humans.

Why then not look to other states/systems/countries with similar positions on the value of [insert issue here] for guidance? Those extra-jurisdictional opinions are nothing more than uber amici briefs. They inform the debate, but have not precendential value.

Citing to one group of countries for support (not precedent) is no more hypocritical than citing to one set of amici and not another. It's not any more antidemocratic than the common law is already.

It sounds like your problem is more with the idea of common law than it is with what citations are included. Don't worry, if the federal gov't continues its trend of imposing more and more laws on the states, we'll be like code-based France in just a few years. Judges, and the law professors who spend their careers picking through their decisions, will have plenty of spare time.

Xrlq said...

Eric, that doesn't follow at all. A better analogy is that State A should not look to State B for guidance unless both states have identically worded, or substantially similar statutes on the books, nor neither state has a statute on the books, and both jurisdictions are governed by the common law instead. If you're following the common law, it may be well be appropriate for Texas or Oklahoma to follow each other, or for either to follow England or India, while neither should follow Louisiana.

Ultimately, I think Prof. Anderson's basic objection to importing foreign/alien law in other contexts is correct. This is not about U.S. sovereignty, but about the imperial judiciary, which has taken naked judicial activism to a whole new level. It used to be that a judge couldn't just come out and admit he threw out a law because he didn't like it; at a minimum, he had to come up with a colorable argument that the Constitution left him no other choice. Once that pseudo-Constitutional fig leaf is no longer needed, it's even easier to throw out a law on a whim; all the judge has to do is find at least one jurisdiction somewhere in the world whose law he prefers, and apply that law instead.

The sovereignty issue, by contrast, is a red herring. If we can all agree on which body should (and who should not) be the one to determine what U.S. policy will be, I think we can also agree that there is nothing objectionable about allowing that body to consider adopting the policies of other countries. Depending on what the issue is, sometimes they may see fit to copy France or Germany on one isse or another. Other times, they won't. In a few rare instances, they may even conclude that some obscure aspect of Sharia law is worth taking a look at. That's all fine, as part of the democratic process. I just don't trust a judge to make that call.

David said...

Scalia will nearly always win debates like this, because he has been thinking about these issues for a longer time and more deeply than nearly anyone. Breyer is a bright guy adhocing his way through a Supreme Court career that must have been as big a surprise to him as anyone else. Breyer can be articulate about an issue that comes before him, but in debate with someone equally articulate whose views reflect decades of systematic thought about the entire legal and philosophical system of American democracy, Breyer's lack of depth shows. I am always stunned by how many "intellectuals" detest Scalia--the man as well as his ideas, since Scalia is a decent and thoughtful man. I'm convinced as I look more closely that this visceral near hatred arises out of fear, an emotion closely related to hate. It comes out as fear of Scalia's so-called reactionary views, but the real fear is of Scalia's immense and disciplined intellectual talent and power.

Greg D said...


Your point about Breyer's remark about legal texts is good, but I think not complete.

There is a fundamental question that needs to be addressed: Who is soverign?

Is it "We the People", or is it anyone else? If it's "We the People", then the opinions of our elected representatives ought to be rather significant when "interpreting legal texts". The idea that the opinions of "random" (i.e. those who agree with the Justice) lawyers matter more than the legislative record indicates a mind that doesn't really concern itself with the democratic process.

If Justice Breyer believes that "We the People" are soverign, he's done a remarkably good job of hiding that belief.

If he doesn't, he doesn't belong in any position of government power.

jaybird said...

Seems to me that by injecting the issue into common discussion, discussion where the very notion is considered and given deference as a concept worthy of being considered and discussed, the advocates of the concept have won the incremental first-step victory they sought.

Anonymous said...

I think this is the beginning of the end for a more "enlightened" view of the Constitution. It is good, that the majority of professers who believe the constitution should be interpreted in light of current mores, instead of interpreted in light of the actual intent of those who wrote it. To believe quoting foreign law is or should not be such a big deal, is going to be a problem for them. This will make it very easy for them and their ideas to be defeated, in the court of public opinion.

Anonymous said...

I offer this: What if such law is judged on how congruent its foundation is with U.S. law?

Anonymous said...

The Supreme court exists to relate laws to the US constitution. No other law must must be sought for their interpretations.

cincinnatus said...

If your point is that PowerLine is taking a remark completely out of context and then twisting it to meet the blog's own far-right slant then there's really no point at all. That's what PowerLine does. There a bunch of right-wing hacks. Anyone who calls Breyer a "far left liberal" is crazy.

cincinnatus said...

"I think subordinating the Constitution in any way to foreign law is such an impeachable offense."

I'd agree with you on that, but I don't think anyone on the Court is doing anything even close to that, or advocating for anything like that. Scalia has never asserted that. The debate is a pretty abstract legal one that is being used by fear-mongers to scare people that certain librul activist judges are basing their decisions on Swedish law.

In any event, the most notorious use of foreign law, by Justice Kennedy in Lawrence, was merely a response to Chief Justice Burger's use of foreign law in Bowers v. Hardwick where Burger asserted that there was a long history of western civilization's condemnation of homosexuality. Kennedy responded to this only to say that Burger was -- guess what? -- SELECTIVELY citing to the history of western civilization and failing to note recent developments which showed that the whole judeo-christian world wasn't as scared of homos as much as Chief Justice Burger apparently was. I don't recall Tom Feeney, and his clan, bitching about Burger's use of "foreign" law. And, moreover, I hear little from Feeney & Co. about how all these Southern judges are all saying now that the "ultimate" authority is the Bible and Ten Commandments --- seems like foreign law to me, written by my forefathers 2000-3000 years ago in Judea.

SharplyShiloh said...

I watched the entire CSPAN broadcast, There is no fig leaf, and no need to "explain" to me what I heard. The Constitution of these States united is the sole reference. I didn't hear one thing about the Constitution from Breyer. I heard how he could find places around the world to validate what he thinks! Listening to Scalia, I heard a Justice concerned with the Law, the authority of the Constitution. His laser-focus is original intent. Pure and simple. Not legislation. Not the democratic process. Not majority rule. Not Judicial Activism, that cancer eating away the underpinnings of a free republic. Scalia asks, what's the law? What's the Constitution say on this? That's our final authority. Breyer asks, "What does everyone else think? Maybe the rest of the world, rotten as it is, will provide input about how I should view Law in America."

Breyer never mentioned the Constitution. It was as frightening a time in front of my television as watching the towers fall. Apparently the Constitution is a dead instrument to him, and how he thinks is the summation of my worst fears what can happen to an otherwise God Blessed nation when the enemy is inside our borders, not outside.

No, Prof. Anderson. I don't need it explained to me. The context, the nuance, and the facts spoke for themselves. Mr. Breyer may wear the robes of offfice, but he is no Justice.