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Rosen on Koh and International Norms:

Via this post by Professor Bainbridge, I happened upon the following passage from a 2004 Jeffrey Rosen article in The New Republic, "Supreme Mistake" (11/8/2004):

The willingness of liberal justices to consult international norms in constitutional cases has become a rallying cry for social conservatives: Bork's most recent book is called Coercing Virtue: The Worldwide Rule of Judges. But, although Bork's book is a slapdash polemic, other, more thoughtful conservative scholars, such as Jack Goldsmith of Harvard Law School, have argued persuasively that too much attention to international law could thwart U.S. constitutional traditions and reignite a domestic culture war. There are, after all, dramatic legal and cultural differences between European and American views about free expression, privacy, and due process. This means that, if judges become too willing to look to Europe, they may impose values on U.S. legislatures that the American public will be moved to resist. Moreover, there is nothing inherently progressive about European views on these contested issues: If U.S. courts looked to Europe in abortion cases, for example, they would allow more restrictions than Americans now tolerate.

Breyer and Ginsburg have been appropriately cautious in invoking international norms, citing them only as additional evidence of a consensus in cases where a clear majority of states have also rejected a controversial practice, such as sodomy laws or the juvenile death penalty. But it's possible that younger justices of a more internationalist bent might be more aggressive about invoking a purported international consensus to strike down practices that a majority of the American public continues to support--such as the death penalty for adults. For example, Dean Harold Koh of Yale Law School, mentioned as a possible Kerry Supreme Court nominee, has supported the idea that U.S. courts should expansively apply international legal precedents without the authorization of the president and Congress. And some justices have begun to invoke international law in areas where there is intense social disagreement, such as affirmative action. If anything could reignite the culture wars, it would be a decision by the U.S. Supreme Court to thwart deeply felt currents in American public opinion in the name of the international community. Given Kerry's emphasis on international opinion in his campaign, there's no reason to expect him to be attuned to this danger.

RSF677:
"If U.S. courts looked to Europe in abortion cases, for example, they would allow more restrictions than Americans now tolerate."

I think this would be more accurate if it said that "they(US Courts) would allow more restrictions than US courts now allow." I'm pretty sure a majority of Americans support more restictions on abortion (although not an outright ban) and the courts are standing in their way.
4.13.2009 10:02pm
DangerMouse:
This means that, if judges become too willing to look to Europe, they may impose values on U.S. legislatures that the American public will be moved to resist.

Interesting excerpt, in that it's accepted that the role of a judge is to "impose" values. So much for applying the law.

Do we really need judges to "impose" values. How about we just organize society through our own values via our elected representatives? The last person I want to "impose" values is some snobby, elitist, out of touch, aging hippie judge.
4.13.2009 10:34pm
ReaderY:
The fundamental question is whether judges are our serveants or our masters. Do they seek merely interpret our laws, or do they seek to impose their own on us?

Ginsberg laments that if she could obtain more power and prestige if her she didn't have to others' priorities. This is a problem shared by everyone who suffers under the constraints of a duty of loyalty. We could all obtain more power and prestige if we permitted ourselves to use the resources of our offices for our own purposes without having to worry about any accountability to those who put us in our positions. Justice Ginsberg is understandably no less less subject to temptations in this respect than every defendent accused of breach of trust who appears before her.

What is supposed to distinguish a judge from a criminal, however, is how the one responds to those temptations.
4.13.2009 10:45pm
DangerMouse:
The fundamental question is whether judges are our serveants or our masters. Do they seek merely interpret our laws, or do they seek to impose their own on us?

This isn't the fundamental question. The answer is obviously YES, they are our masters. We are just plebes. The judges rule over everything.

The fundamental question is, how long will it go on, and how will it end?
4.13.2009 11:50pm
Noah David Simon (mail) (www):
help. I've fallen on a slippery slope and the international community won't let me get up!
4.14.2009 12:03am
Andy Bolen (mail):
Good catch, RSF677. You're spot on.
4.14.2009 12:50am
martinned (mail) (www):

And some justices have begun to invoke international law in areas where there is intense social disagreement, such as affirmative action.

How would that work? While affirmative action does exist in Europe, it is a much less contentious issue, and - for that and other reasons - rarely litigated.
4.14.2009 8:48am
David Starr (mail) (www):
"If anything could reignite the culture wars, it would be a decision by the U.S. Supreme Court to thwart deeply felt currents in American public opinion in the name of the international community."

It would do a heluva lot more than just "reignite the culture wars". How about cause a political avalanche? Or perhaps riots in the streets? Or assassinations?

The Supremes have blundered in the past and the political fallout has been ugly. For instance Dred Scott touched off the Civil War.
4.14.2009 9:18am
Commentor (mail):
Let me get this straight, we are growing concerned that our judges may start ignoring the Constitution and Congress and start following foreign law based on the writings of a professor who was listed as a possible Kerry appointment?

Something tells me Mr. Koh would have had a hard time getting through the Senate, whether under Republican or Democrat control.
4.14.2009 10:01am
JoeSixpack (mail):
Activist courts will look to any defensible source to justify the decision they want to come to. International law is only relevant insofar as it supports the policy the court wants to impose. If the death penalty for juveniles was suddenly reinstated throughout Europe it's hard to imagine that the same courts that found international law so persuasive would continue to do so.
4.14.2009 1:09pm
Andy Freeman (mail):
> Something tells me Mr. Koh would have had a hard time getting through the Senate, whether under Republican or Democrat control.

Please identify the Dem senators who would oppose his nomination.
4.14.2009 7:33pm

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