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.