Angry New Yorker

Friday, January 14, 2005


C-SPAN's broadcast yesterday of a discussion between Supreme Court Justices Antonin Scalia and Stephen Breyer on "Whether Foreign Court Decisions Should Impact American Constitution Law" was interesting, and will be available online as C-SPAN shortly. While I didn't heard anything groundbreaking -- both Justices reiterated their already well-known previous positions -- I'm definitely in the agreement with Scalia on both the approach to, and the effect of foreign law (not to be confused with international law) on U.S. domestic law. J. Breyer sounded reasonable, as he usually does, but I, along with for instance the folks at Powerline, were something alarmed by by several of his statements, which while offhand remarks no doubt belie a deeper approach. To whit, from Powerline:

Today, the Associated Press reports on a televised debate between Justice Antonin Scalia and Justice Stephen Breyer on this topic. Justice Scalia argued that it is "arrogant" for American judges to mold the Constitution to fit their concept of enlightened world-wide opinion. But Justice Breyer was breathtakingly candid about the role that he thinks foreign countries should play in dictating American law:

Breyer responded that international opinion can be relevant in determining fundamental freedoms in a more global society.

"U.S. law is not handed down from on high even at the U.S. Supreme Court," he said. "The law emerges from a conversation with judges, lawyers, professors and law students. ... It's what I call opening your eyes as to what's going on elsewhere."

I'm not sure I would have believed that if I hadn't read it: "The law emerges from a conversation with judges, lawyers, professors and law students." No mention of the language of the Constitution; no mention of statutes enacted by Congress or the state legislatures; no mention of American customs, traditions, or popular opinion. Do you think this an extreme view? It is, of course, but the Associated Press doesn't think so. Its article calls Scalia a "conservative" justice, but does not label Breyer. His view is, from the AP's perspective, the mainstream one. (A personal note--Justice Breyer was my honors thesis adviser in law school. I did not view him, then, as an extremist; on the contrary, he was one of a handful of professors who introduced me to free market economics. But no Supreme Court justice has ever moved to the right after being appointed; not in my lifetime, anyway.)

This discussion starkly illuminates the battle that will be fought over the Supreme Court during the next four years. The newspapers and television networks will tell you that President Bush's nominees, who will uphold the sovereignty of the United States and will decide cases based on our Constitution and statutes, and not some other countries', are "extreme." No one will suggest that those holding the opposite view--that American law should be decided by Europeans, Africans and Asians--are out of the meanstream.

The stakes could not possibly be higher.

UPDATE: Howard Bashman wrote to point out that he has a link to the Scalia/Breyer debate on his site. Watch it, and see for yourself.

: Professor Kenneth Anderson, who was one of the organizers of the debate, takes exception to Powerline's view of Justice Breyer's comments, arguing Breyer was quoted out of full context by AP. Having watched the entire debate I don't think they misquoted so much as they didn't - and obviously how could they? - provide Breyer's full range of comments that provided some needed context. I admire Justice Breyer's opinions generally, even though I happen to think he's wrong on many items, this issue in particular, but when I agree I tend to agree with him 100%.
Professor Anderson is no fan of Breyer's position on international law, by the way, and on his War and Just War Theory Blog, has posted a long exposition of Breyer's position and Powerline's critique of the Scalia-Breyer debate, available here. Anderson states:

Justice Breyer was speaking in a very specific exchange with Justice Scalia about the narrowly judicial act of interpreting legal texts, and it is quite unfair to take that remark about who participates directly in the process of interpreting legal texts that have already been informed by constitutional and legislative and other democratic institutions - judges, lawyers, law students (and it was obvious to the live audience that he included students as a courtesy to the audience of law students) - as being somehow antidemocratic. He was just noting the fact that legal materials, once they have been created through various democratic mechanisms, then become subject to interpretation by the interactions of lawyers and judges. It was nothing more insidious than that. A much better summary of the event is in Charles Lane's Friday front-page Washington Post article.

I yield to no one - not even Hindrocket - in my opposition to the drawing of foreign law into US constitutional adjudication. I have a long multi-post discussion on this blog outlining the issues and critiquing Justice Breyer's views, beginning here. I have a Harvard Law Review piece coming out in February that severely criticizes Justice Breyer's position, and asking him, among other things, why, if he is willing to cite cool, progressive European law, he does not also cite Shari'a law. . . .
* * *
Justice Breyer's real problem in the debate showed in his repeated assertion that this was not a big deal, it was no different from citing Blackstone or other extrajudicial materials - Shakespeare, the Bible, whatever. His answer to his critics who rightly wonder where the practice stops is disturbingly and, I would say, entirely ad hoc.
Read the entire thing here.

See also MSNBC's ridiculously snide article by Tom Curry, Justices debate use of foreign precedents, here, which for some unfathomable reason is subtitled In joust with Breyer, Scalia offers possible confirmation preview. Huh? What?

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