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Ginsburg on Citing Foreign Legal Decisions:

The New York Times has an account of a speech by Justice Ginsburg defending the practice of citing foreign legal decisions:

Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

"Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" she asked.

Well, that depends. If, for example, the issue is interpreting a clause of the U.S. Constitution, and the law review article is about the text and history of the U.S. Constitution, and the "judge from abroad" is writing about the E.U. Constitution, or international norms, or moral theory, then there is very good reason one would "look to the wisdom" of the American professor, and not to that of the foreign judge.

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is "probably cited more widely abroad than the U.S. Supreme Court." There is one reason for that, she said: "You will not be listened to if you don't listen to others."

Really, who cares? Justice Ginsburg's job is to get American law right, not to influence the rest of the world's law. And, anyway, it strikes me that the Canadian Constitution, as interpreted by its Supreme Court, is much more in line with the more collectivist ideologies of other nations than is the U.S. Constitution. Consider how Canada allows free speech to be balanced against purported societal interests in such a way that, for example, allows bans on purported "hate speech." The U.S. should be proud that our law stands alone in this regard, not lamenting that it prevents us from getting cited abroad.

She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.

"What happened in Europe was the Holocaust," she said, "and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values."

Well, that's just bizarre. The Holocaust was carried out by a Nazi dictatorship that hadn't been elected since 1932. And if Weimar Germany had established a constitutional court, it's highly unlikely that it would have meaningfully stood in the way of the Nazis. But I'm willing to reconsider if someone can point me to academic literature showing that the establishment of constitutional courts was a response to the Holocaust.

And note the irony that there is one national "constitutional court" that did stand in the way of rising tide of fascism and fascist-inspired policies in the 1930s, and that's the U.S. Supreme Court. The Court invalidated various New Deal policies, in particular the National Industrial Recovery Act (unanimously), that threatened to concentrate far too much unreviewable power in the hands of the President (in the case of the NIRA, the power to set wages and prices across a broad swath of the American economy). If Ginsburg has ever said a kind word about the Supreme Court of the early New Deal period, however, I'd be very surprised. She certainly consistently votes against any attempt to revive even minimal limits on the federal government's power.

In her remarks, Justice Ginsburg discussed a decision by the Israeli Supreme Court concerning the use of torture to obtain information from people suspected of terrorism.

"The police think that a suspect they have apprehended knows where and when a bomb is going to go off," she said, describing the question presented in the case. "Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: 'Torture? Never.'"

The message of the decision, Justice Ginsburg said, was "that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity." Then she asked, "Now why should I not read that opinion and be affected by its tremendous persuasive value?"

I don't know that Ginsburg is accurately describing Israel's law, which as I understand it allows the use of "moderate physical pressure" in exigent circumtances. (Also, an aside, the Israeli Supreme Court is a rather dubious institution. It has arrogated to itself the power to determine the constitutionality of various very important government policies, including with regard to questions of national security, despite the fact that Israel has no constitution. That Barak, a leading advocate of this constitutional coup, is so widely admired by American liberal constitutionalists likely says something significant, and to me not very positive, about their view of the proper role of the judiciary.)

Regardless, there is very good reason that Justice Ginsburg shouldn't be affected by Justice Barak's opinion, as described by Ginsburg, and that's its reliance on moral judgment rather than law [not the fact that Barak is a judge from a foreign country. As a commenter points out, if the issue is the interpretation of an international treaty against torture, foreign precedents are obviously potentially persuasive. But Ginsburg cited Barak not for his interpretation of a treaty, but for his moral judgment]. It's not Justice Ginsburg's job to decide whether allowing the use of torture is a lesser evil, or whether it should be banned because it means "we come to look like that enemy in our disregard for human dignity." Such determinations are for the elected branches to make in establishing the law, and Justice Ginsburg's job is to apply the law they have made, not to make up rules that comport with the values she has adopted after thinking very hard about the learned decisions of judges in other countries. Justice Ginsburg is free to be personally persuaded on the moral issue by Justice Barak, but this should have no effect on her vote on any case involving the legality of torture.

By the way, readers interested in why, in historical context, it's important to limit the influence of foreign law on American constitutional interpretation should read, among other things, one of my favorite books, Ken Kersch's Constructing Civil Liberties, with a focus on the final chapter. In short, the "turn to international law" is the latest in a series of attempts by the Progressive left, some more successful than others, to separate American constitutional law from the unique values that animate the U.S. system of government.

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Citing Foreign Law, the Culture Wars, and the Law Review Article Hypo: In his post below, David notes Justice Ginsburg's puzzlement about opposition to citing foreign law when interpreting the U.S. Constitution: "Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" This is a fair question. Conservatives haven't gone nuts when judges cite law professors; why go nuts when judges cite foreign law?

  I think the reason is that the Justices who favor citing foreign law have done so in a way that takes sides in the culture wars. Any time a Supreme Court Justice uses language or cites sources that indicate having taken sides in the culture wars, the other side is pretty much guaranteed to go bonkers. Here's what I said about this back in 2005:
  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.
  This works both ways. When a Justice writes an opinion that suggests an identification with the conservative side of the culture wars, it readily triggers a great deal of consternation if not anger from the cultural left. Recent examples include Justice Kennedy's opinion in Gonzales v. Carhart (with its suggestion that abortion may be harmful to the mental health of the mother) and Justice Scalia's dissent in Lawrence v. Texas (especially the line about "the homosexual agenda"). Both of these opinions echoed the language and priorities of the conservative side of the culture wars, triggering a lot of outrage and anger among political liberals. Indeed, the opinions continue to sting years later, as we saw with Rep. Barney Frank's recent accusation that Justice Scalia is a homophobe based on his dissents in Lawrence and Romer.

  Let's return to Justice Ginsburg's question: "Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" The difficulty is that if Ginsburg used law review articles in the same way as she favors using foreign law, it would cause the same reaction. The controversial citations to foreign law haven't been to specific decisions that the Justices point out as particularly deep or insightful. The Supreme Court never says, "Golly, I found this opinion by Lord Hobhouse of Woodbury and it's just briliant —it totally changed my mind about the nature of privileges and immunities!" Rather, controversial citations to foreign law tend to arise as part of a survey. Looking at the general category of foreign opinions, the thinking goes, we see a trend. Indeed, it's not even really clear that the Justice who wrote the opinion actually read the foreign law decision that is allegedly so wise.

  An accurate analogy to citing law review articles would therefore go something like this. Imagine a Supreme Court decision striking down an abortion restriction that included this paragraph:
  In reaching our decision, we find confirmation in the scholarship of our nation's law professors and law students. A review of legal scholarship indicates that it is overwhelming against abortion restrictions of this type. Our research has uncovered 19 articles and 42 student comments on this issue, and all but six take a critical position towards legislation such as the one before us. See, e.g., Lawrence Tribe, . . . . [citations omitted] We have much to learn from the wisdom of our scholars, both on faculties and those still in law school who are our scholars of the future. We see their judgment as further confirmation that our decision is correct.
  I would think that would cause the same reaction among conservatives triggered by the Court's citation to foreign law in cases like Lawrence and Roper. It's not about "sources of wisdom," it's about the culture wars.

Related Posts (on one page):

  1. Justice Ginsburg, the Holocaust, and Judicial Review:
  2. Citing Foreign Law, the Culture Wars, and the Law Review Article Hypo:
  3. Ginsburg on Citing Foreign Legal Decisions:
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Justice Ginsburg, the Holocaust, and Judicial Review:

In a recent speech justifying citation of foreign law, Justice Ruth Bader Ginsburg claims that judicial review spread in Europe because of the experience of the Holocaust:

She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.

"What happened in Europe was the Holocaust," she said, "and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values."

Ginsburg's argument is extremely dubious. As co-blogger David Bernstein points out, there is little if any evidence that the Holocaust influenced the adoption of judicial review in Europe. Some European democracies already had judicial review even before World War II. And the Holocaust was not carried out by "popularly elected representatives," but by a Nazi dictatorship. German public opinion in the 1930s was highly anti-Semitic; but there is no reason to believe that a Holocaust would have occurred absent the rise of a nondemocratic totalitarian state. Indeed, German Jews enjoyed legal equality under the democratic government of the Weimar Republic (though there was of course a great deal of informal public and private discrimination against them). Democracy has many serious flaws, some of which I have analyzed in my own scholarship. Indeed, I am probably much more skeptical about democracy overall than Justice Ginsburg is. But no democratic government has ever committed mass murder or genocide against its own citizens.

Perhaps Justice Ginsburg merely meant to say that judicial review was needed to prevent democracy from being replaced by a dictatorship, which in turn could go on to commit atrocities similar to the Holocaust. Some 1930s and post-World War II Europeans surely did see judicial review as a possible obstacle to the rise of authoritarian political movements. However, the Weimar Republic actually did have judicial review. Yet German judges did little to prevent the Nazis from taking over. Indeed, many of the judges supported parts of the Nazi agenda and collaborated with the Nazi regime when it came to power. This doesn't prove that robust judicial review is undesirable. But it does suggest that the rationale for judicial review can't be based on its supposed ability to prevent future Holocausts.

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