Posted by Orin Kerr:
Justice Scalia is Afraid, Justice Thomas Is Not Smart Enough:
http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1117139865
Maybe I'm missing something, but that seems to be law professor
Michael J. Kelly's [1]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
[2]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 [3]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.
References
1.
http://www.acsblog.org/international-affairs-1385-guest-blogger-deconstructing-the-false-arguments-against-use-of-ainternational-lawa-by-federal-courts.html
2.
http://www.acsblog.org/international-affairs-1385-guest-blogger-deconstructing-the-false-arguments-against-use-of-ainternational-lawa-by-federal-courts.html
3. http://www.nyunews.com/news/campus/9405.html
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