My friend Mark Harden has lured me into a debate over the proper role of the U.S. Supreme Court and whether it is appropriate for justices to consider legal opinions made by foreign entities when ruling on cases under the U.S. Constitution.
Mark was particularly preturbed by Justice Ruth Bader Ginsburg for comments she made during a speech before the American Constitution Society.
He has called for her impeachment as a result.
Mark's contention is that “the only purpose of the US Supreme Court is to interpret the Constitution of the United States” and thus looking to any other foreign body of law is inappropriate if not outright treasonous.
I would first note that the Constitution set up the Supreme Court under very broad parameters.
Article III, Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
But the whole bit about interpreting the Constitution or judicial review was not spelled out in the Constitution, although it was alluded to in the Federalist Papers. It was not confirmed until it was formally invoked by Chief Justice John Marshall in the Marbury vs. Madison case in 1803.
You can read all about the history of the court and Constitutional interpretation on the court’s Web site here.
So saying that the court was initially set up to do something that didn't come about for a dozen or more years isn't quite accurate. The Marbury case greatly expanded the power of the court by including interpretation among its duties. It did not limit the court to only providing strict interpretations of the Constitution.
But back to the argument at hand. The recent uproar over foreign influences on Supreme Court decisions was sparked by a dissent written by Justice Antonin Scalia in the Lawrence v. Texas case that struck down the sodomy law in Texas. Scalia was upset because Justice Anthony Kennedy, writing for the majority, referred to an amicus brief filed by Mary Robinson, former United Nations high commissioner for human rights that cited European cases striking down anti-homosexual laws:
"Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct," Kennedy wrote. "The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country, the governmental interest in circumscribing personal choice is somehow more legitimate or urgent."
Scalia erupted thusly:
"Constitutional entitlements do not spring into existence because some states choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct," Scalia wrote. "The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since 'this Court...should not impose foreign moods, fads or fashions on Americans.'"
Somehow I don't find the idea that adults engaged in intimate, consensual conduct should not have to fear having their door busted down by the morality police as being some kind of foreign mood, fad or fashion.
Unfortunately, what most Americans would take as a temper tantrum by a sore loser, Mark and his friends have taken up as a cause celebre to seek the ouster of ... um... Justice Ginsburg.
It is true that Judge Ginsburg referred to an international treaty in writing her decision in the Grutter v. Bollinger affirmative action case. But why Mark wants to impeach Ginsburg and not also Justice Kennedy is the big mystery here.
Oh, and let's not forget about Justice Sandra Day O'Connor! She needs to be impeached as well. Here are her comments on this issue from an interview with Prof. David Rudenstine of Cardoza University from a few years back:
Rudenstine: When looking at the history of the Supreme Court and the dialogue that goes on among justices and scholars over how to interpret and apply the United States Constitution, there is no evidence that we have looked to Italy and France and Germany or any other country for ways to interpret or rule on cases and legislation.
O'Connor: Historically courts in this country have been insulated. We do not look beyond our borders for precedents. When I went to law school, which after all was back in the dark ages, we never looked beyond our borders for precedents. As a state court judge, it never would have occurred to me to do so, and when I got to the Supreme Court, it was very much the same. We just didn't do it. Occasionally we have to interpret an international treaty - one, perhaps, affecting airlines and liability for injury to passengers or damage to goods. Then, of course, we have to look to the precedents of other member nations in resolving issues. But short of that, we have tended not to pay any attention to what other countries were doing. Yet most countries, at least in the western world, face similar issues from time to time. Look at Canada. Canada has a Charter of Rights and Freedoms that is parallel to our Bill of Rights - it is not identical but similar. They have faced many of the same issues we have and at roughly the same time. It is my sense that we have not paid close attention institutionally to the jurisprudence of Canada or other nations. I think that's changing.
Rudenstine: As Justices consider a particular case that has been briefed and argued and read, would you then also consider reading opinions of a supreme court or a constitutional court in some other land as a way of gaining additional insight on our own traditions or interpretations?
O'Connor: I would, if it were an issue that had a close parallel in decisions of that other country. I would be interested to know how they handled it, yes.
Rudenstine: In any opinion that you have offered, do you recall citing an opinion of a foreign court?
O'Connor: Yes, but I don't have specifics to give you this morning.
It is a good thing to do occasionally. Let me give you some examples. We had a case not long ago involving state laws governing physician-assisted suicide. We have virtually no experience of that in this country - none. And that was a case where we had some very useful amicus briefs and materials that brought before us the experience of other countries, such as the Netherlands. I found that this was very useful, and I suspect that if we looked we would see some of these materials cited. I also recall that in some of the cases in which our court was looking at state laws governing abortion, it was very interesting to look at comparative experiences in other western nations. I suspect that we would find cited some of those materials as well.
"It is a good thing to do occasionally."