International Law Should Be Irrelevant To Decisions Made By Supreme Court Justices By Betsy Newmark

14 Jan, 2005 by John Hawkins

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I watched this discussion on C-Span between Antonin Scalia and Stephen Breyer on whether or not the Supreme Court should make references to International court decisions in their own decisions. It was fascinating. To my mind, Scalia was so much more persuasive. He pointed out that the justices are selective, only choosing those foreign decisions that supported their own position.

Scalia bemoaned a recent trend on the high court in citing international opinion to support decisions interpreting the U.S. Constitution, including those decriminalizing gay sex and banning the execution of the mentally retarded.

“What you’re looking for are the standards of decency of American society,” Scalia said. “What does an opinion of a wise Zimbabwe judge have to do with what Americans believe?

“Doesn’t it seem arrogant to think I can decide moral views for penology, death penalty and abortion?” he said, arguing that elected legislatures should make those decisions.

Breyer, who seems like a very nice man but does have a tendency to ramble on and on in his responses before he gets to the point, kept saying that shouldn’t he be interested in what other human beings have thought when they wrestled with similar decisions. Scalia had the perfect riposte. “Indulge your curiousity. Just don’t cite them in your opinion.” Sounds good to me.

It just makes no sense why American justices should pick and choose foreign decisions to back up what they want to do. Isn’t the Constitution and American history of jurisprudence good enough for them? Apparently not.

UPDATE: I just wanted to add another point that Scalia made. He said that there were some issues that the Constitution is mute on. Abortion for example. Scalia said that since the Constitution doesn’t say anything one way or another, what’s wrong with leaving it up to democratically elected legislators making the decisions? He felt that it was hubristic of judges to make decisions for which there was no guidance from the Founders. Gosh, it sounds so logical when he says it. Breyers meanderings about how he likes to see what other people in other countries when there is a hard decision just shows how it doesn’t even seem to occur to him to defer to legislatures.

Content used with permission of Betsy Newmark from Betsy’s Page. You can read more of her work here.