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.
Comments will be open for four hours.
UPDATE: I opened comments, but they are not working. Sorry.
UPDATE 2: Comments are working now. I'll leave them open for a little while.
UPDATE 3: Comments are now closed.
Related Posts (on one page):
- Justice Ginsburg, the Holocaust, and Judicial Review:
- Citing Foreign Law, the Culture Wars, and the Law Review Article Hypo:
- Ginsburg on Citing Foreign Legal Decisions: