Foreign Law and the Culture Wars: In an essay at American Prospect Online, Deb Pearlstein argues that it is perfectly normal for the U.S. Supreme Court to discuss and cite to foreign law in the course of interpreting the U.S. Constitution — and that conservative opposition to the practice is groundless:

Like the bogeyman critique of "judicial activism," "foreign law" seems to have become the latest stand-in straw man for those who aim to cast fundamentally political opposition as a principled objection. It is hard not to conclude that vocal opponents of "foreign law" are driven less by any real threat to U.S. legal sovereignty than by the fear that even a conservative judge might embrace a legal rule with which they disagree. But that danger is also long known to the United States; it is the necessary price of the rule of law.

  I think Pearlstein misses the point. The real issue isn't sovereignty, but the culture wars. The Supreme Court's citations to foreign law have appeared in highly controversial cases at the heart of a national sociopolitical divide between (for lack of better labels) social conservativism and modern liberalism. The kinds of foreign countries that a Supreme Court Justice might know best mostly don't share this sociopolitical divide: in those countries, and especially their court systems, the views of modern liberalism for the most part have won out. In this environment, stressing similarities with foreign court decisions can seem a lot like taking sides in the culture wars.

  Of course, the Supreme Court has to rule one way or another in its cases, so in one sense it has to take a side. But citing and discussing foreign law for "confirmation" of a Constitutional holding does more than rule one way or another: it is a reflection of cultural association, an indication that at least some Justices envision themselves as part of a community that happens to be strongly identified with one side of these highly contested debates. Those that object to foreign law are not really concerned that foreign law is somehow binding on the United States, or that it represents a loss of U.S. sovereignty. To the contrary: it is the very fact that such law is obviously not binding under traditional methods of constitutional interpretation that makes the discussions of foreign law most objectionable to its critics. The fact that foreign law isn't binding, but that the Justices have gone out of their way to mention it anyway, fosters the impression that the Justices identify themselves with a side in the culture wars.

  If you're unpersuaded, try this experiment. Imagine that instead of citing foreign law in its decisions, the conservative majority on the Court started citing to and discussing the Bible. In particular, let's imagine that Roper v. Simmons had come out the other way, and that Justice Kennedy's opinion for the Court upholding the death penalty for 16 and 17 year olds had contained the following passage:

  Our determination that the death penalty is proper punishment for offenders under 18 finds confirmation in the fact that such punishment is recognized in the Judeo-Christian Bible. The Bible repeatedly requires capital punishment for many offenses, and nowhere limits this punishment to those 18 years of age. See, e.g., Levitucus 24:17 ("He that killeth any man shall surely be put to death."); Exodus 21:16 ("And he that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death."). Indeed, the death penalty is mandatory for a number of affronts against parents, which presumably would encompass many offenses by minors. See, e.g., Exodus 21:17 ("And he that curseth his father, or his mother, shall surely be put to death."); Exodus 21:15 ("And he that smiteth his father, or his mother, shall be surely put to death.").
  This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet our ancient traditions and cultural heritage are instructive for the Court's interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments." It is proper that we acknowledge the overwhelming weight of authority in the Bible in favor of the juvenile death penalty. Cf. Zorach v. Clauson, 343 U.S. 306, 313 (1952) ("We are a religious people whose institutions presuppose a Supreme Being."). The opinion of our Judeo-Christian traditions, while not controlling our outcome, does provide respected and significant confirmation for our own conclusion. It does not lessen our fidelity to the Constitution to acknowledge that the express affirmation of certain fundamental rights recognized from the time of Abraham simply underscores the centrality of those same rights within our own heritage of freedom.

  My sense is that most people who have no problem with the Court citing foreign law would blow a gasket if this passage appeared in the United States Reports. You can imagine the reaction: What on Earth gave the Supreme Court the idea that they can rely on the Bible? This is the Constitution, not church! If some people want to believe in the Bible, that's up to them, but this is America and they can't foist that Bible stuff on me! Why the strong reaction? Not because "liberals" really only object to "conservative" results (although you can imagine the NRO column making this argument, can't you?). The reason, I think, is that Biblical text tends to be associated with one side of the sociopolitical divide and is not a traditional source of constitutional guidance. As a result, seeking "confirmation" of a constitutional holding in the Bible would send a message that the Justices are not just interpreting the Constitution — they would be doing more, expressing personal views as to which side of the sociopolitical divide they see as their own.

  To be sure, the analogy between foreign law as authority and the Bible as authority isn't perfect. I realize that. But I think it does capture why some conservatives feel so strongly about citations to foreign law in Supreme Court opinions.

Justice Scalia is Afraid, Justice Thomas Is Not Smart Enough: Maybe I'm missing something, but that seems to be law professor Michael J. Kelly's suggested answer to the question of why Justices Scalia and Thomas object to citing foreign law in the course of interpreting the U.S. Constitution. In a guest post over at ACSBlog, Kelly describes Thomas and Scalia as "isolationists," with a "rigid preference for judicial isolationism" that blinds them to the benefits of looking abroad for new solutions. Kelly contrasts Thomas and Scalia with Justice Breyer, who seems interested in foreign law because he thinks we might learn something from the experience. Reflecting on Breyer's curiosity about foreign law, Kelly concludes:

Perhaps this intellectual curiosity is exactly what Scalia and Thomas rail against [when they object to citing foreign law]. Scalia because he is afraid of the weaknesses it could reveal in his originalist philosophy; Thomas because he has no intellectual curiosity.

  So let me get this straight. Justice Scalia won't cite international law because he is afraid of defending his views of originalism? Given that Justice Scalia has been touring around the country giving lectures defending his philosophy and engaging in extensive Q-and-A sessions, often before before quite hostile audiences, that seems a rather strange suggestion. The claim that Justice Thomas "has no intellectual curiosity" is just lame, offered (of course) with no evidence or explanation. Any one who has ever had a conversation with Justice Thomas would recognize the suggestion as absurd. You can agree or disagree with Thomas's deeply-held views, of course, but to interpret profound disagreement as lack of curiosity seems a bit out-of-bounds.

More on Citations to Foreign Law: Professor Michael Kelly has responded to my post on the fact that Justice Scalia and Justice Thomas are opposed to discussing foreign law in the course of interpreting the U.S. Constitution. As I noted in my earlier post, Professor Kelly's initial essay suggested that Justice Thomas doesn't cite foreign law because he lacks intellectual curiosity, and that Justice Scalia refuses to do so because he is afraid that citing foreign law will make it hard for him to defend originalism.

  Professor Kelly offers a more complete explanation in his new post. Here is his explanation of why he thinks lack of intellectual curiosity explains Justice Thomas's failure to cite foreign law:

  The intellectually curious have an innate hunger for more knowledge, are rarely satisfied with one solution to a problem and are drawn to compare - as Justices Stevens, Kennedy, O'Connor, Breyer and Ginsberg do when they cite to decisions of foreign courts. They also often tend to see the world in shades of gray rather than in starkly black and white terms - which admittedly can be a handicap if they are policymakers. Even Rehnquist demonstrated this natural compunction in Glucksberg when he noted the experience of The Netherlands as he was rejecting a right to euthenasia.
 I have not had as many conversations with Justice Thomas as Prof. Kerr has to refute his claim of first-hand knowledge to the contrary. All I have is Thomas' writing to form my opinion, which I have done. And his resistance to citation of foreign court judgements appears not be based on anything other than not wanting to deal with it.

  I'm not sure I follow the reasoning here. By what theory does judicial citation serve as an indicator of "intellectual curiosity" and "innate hunger for more knowledge"? Citing foreign law is easy; you just pick up a brief and cut and paste some citations. As far I can discern, that neither requires nor correlates with "innate hunger for more knowledge." And why is comparative international practice the relevant metric for intellectual curiosity? Why not use discussions of American legal history instead? If you pick legal history as the guide, then you will conclude that the more originalist Justices are the only intellectually curious Justices on the Court. More generally, what about Justice Thomas's opinions leads Professor Kelly to conclude that he in particular lacks intellectual curiosity? For the second post in a row, he does not say.

  In his explanation for Justice Scalia's refusal to cite foreign law, Professor Kelly acknowledges that Justice Scalia "has a philosophical reason for resistance." Justice Scalia does not cite foreign law because in his view it is irrelevant. Professor Kelly continues:

  [That] is why I posed the question of what he may be afraid of (again, I don't know the answer), although I suspect it could be that originalism is not used widely by foreign courts. If it were, perhaps he would have occasion to cite them. However, his bigger fear (again guessing here) may be that a slippery slope exists. If judges begin citing foreign law as non-mandatory, how long will it be before they begin using it to decide cases?

  Again, I'm not sure I follow. Justice Scalia sees foreign law as irrelevant because foreign decisions do not even claim to be interpretaions of the U.S. Constitution. The foreign decisions are interpretations of foreign law, not U.S. law. Why would we think it odd — or, in this case, a sign of fear — not to discuss something that doesn't even claim to be relevant to the case? It seems to me that the normal judicial practice is to not cite that which is deemed irrelevant; I'm not sure why that doesn't fully explain Justice Scalia's practices. Justice Scalia doesn't discuss the Bible in his opinions on constitutional law, either. Should we conclude that he is afraid of religion?

  In any event, I hope I'm not being unfair in my response. I have enabled comments just in case; I am confident that VC readers will set me straight. As always — you knew this was coming, didn't you? — civil and respectful comments only.

  UPDATE: I have deleted two comments already because they were neither civil nor respectful. Sorry to police things like that, but I don't open up comments so commenters can hurl insults.

Germany, the Death Penalty, and the U.S. Constitution: Charles Lane has an interesting piece in today's Washington Post about the history of the death penalty in Germany. According to Lane, the German law abolishing the death penalty in 1949 was passed at a time when 77% of German citizens (according to one poll) were in favor of the death penalty for ordinary crimes. The law passed not out of a conviction that the death penalty was inhumane, but rather as an effort to prevent the execution of Nazi leaders by the American and British postwar authorities. According to Lane:

[The 1949 law] was in fact the brainchild of a right-wing politician who sympathized with convicted Nazi war criminals — and sought to prevent their execution by British and American occupation authorities. Far from intending to repudiate the barbarism of Hitler, the author of [the German anti-death penalty law] wanted to make a statement about the supposed excesses of Allied victors' justice.

  Lane's piece is a bit odd in that it overlooks public opinion in Germany today, which I understand is in fact strongly opposed to capital punishment. So path-dependency problems aside, it seems highly likely that German law would have abolished the death penalty eventually even if it hadn't done so in 1949.

  Still, I think Lane's story raises some interesting questions for those who believe that foreign law and practice is relevant to the proper interpretation of the United States Constitution. As far as I know — and please correct me if I'm wrong — those in favor of considering foreign law and practice generally do not advocate looking at the reason or circumstance of the forces that led to the foreign law's adoption. What matters is that the law is on the books, not how or why it got there. If I'm right about that, does that mean that the efforts by pro-Nazi sympathizers in Germany to stop U.S. authorities from executing Nazi war criminals could in theory shape the meaning of the U.S. Constitution?

  It's an interesting question, I think, because my sense is that proponents of citing or relying on foreign law in U.S. constitutional decisionmaking usually assume that foreign law reflects a resolution of the same issues the Supreme Court is confronting. Foreign law is a relevant testing ground because the issues and tensions are assumed to be similar. But what if foreign law is passed for a quite different reason, such as seems to be the case with Germany and the death penalty? Is it equally relevant? Less relevant? Is the U.S. Supreme Court supposed to look to the history of each country's law and determine whether it was enacted for reasons similar to those explored in the constitutional arguments before the Court before considering it as relevant or even just citing it? Or is the Court supposed to look not to why the law was passed, but rather to recent opinion polls in those foreign countries that might suggest why people in those foreign countries still support the law, or even if they do?

  I'd be very interested to hear from proponents of citing or relying on foreign law about the answers to these questions. I have enabled comments. As always, civil and respectful comments only.