Posted by Orin Kerr:
More on Citations to Foreign Law:
http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1117233315
Professor Michael Kelly [1]has responded to my post on the fact that
Justice Scalia and Justice Thomas refuse to cite foreign law in the
course of interpreting the U.S. Constitution. As I noted in [2]my
earlier post, Professor Kelly's initial essay suggested that Justice
Thomas doesn't cite international law because he lacks intellectual
curiosity, and that Justice Scalia refuses to do so because he is
afraid that citing international law will make it hard for him to
defend originalism.
Professor Kelly offers a more complete explanation in his new post.
Here is his explanation of why he thinks lack of intellectual
curiosity explains Justice Thomas's failure to cite foreign law:
The intellectually curious have an innate hunger for more
knowledge, are rarely satisfied with one solution to a problem and
are drawn to compare - as Justices Stevens, Kennedy, O'Connor,
Breyer and Ginsberg do when they cite to decisions of foreign
courts. They also often tend to see the world in shades of gray
rather than in starkly black and white terms - which admittedly can
be a handicap if they are policymakers. Even Rehnquist demonstrated
this natural compunction in Glucksberg when he noted the experience
of The Netherlands as he was rejecting a right to euthenasia.
I have not had as many conversations with Justice Thomas as Prof.
Kerr has to refute his claim of first-hand knowledge to the
contrary. All I have is Thomas' writing to form my opinion, which I
have done. And his resistance to citation of foreign court
judgements appears not be based on anything other than not wanting
to deal with it.
I'm not sure I follow the reasoning here. By what theory does
judicial citation serve as an indicator of "intellectual curiosity"
and "innate hunger for more knowledge"? Citing foreign law is easy;
you just pick up a brief and cut and paste some citations. As far I
can discern, that neither requires nor correlates with "innate hunger
for more knowledge." And why is comparative international practice the
relevant metric for intellectual curiosity? Why not use discussions of
American legal history instead? If you pick legal history as the
guide, then you will conclude that the more originalist Justices are
the only intellectually curious Justices on the Court. More generally,
what about Justice Thomas's opinions leads Professor Kelly to conclude
that he in particular lacks intellectual curiosity? For the second
post in a row, he does not say.
In his explanation for Justice Scalia's refusal to cite foreign law,
Professor Kelly acknowledges that Justice Scalia "has a philosophical
reason for resistance." Justice Scalia does not cite foreign law
because in his view it is irrelevant. Professor Kelly continues:
[That] is why I posed the question of what he may be afraid of
(again, I don�t know the answer), although I suspect it could be
that originalism is not used widely by foreign courts. If it were,
perhaps he would have occasion to cite them. However, his bigger
fear (again guessing here) may be that a slippery slope exists. If
judges begin citing foreign law as non-mandatory, how long will it
be before they begin using it to decide cases?
Again, I'm not sure I follow. Justice Scalia sees foreign law as
irrelevant because foreign decisions do not even claim to be
interpretaions of the U.S. Constitution. The foreign decisions are
interpretations of foreign law, not U.S. law. Why would we think it
odd -- or, in this case, a sign of fear -- not to discuss something
that doesn't even claim to be relevant to the case? It seems to me
that the normal judicial practice is to not cite that which is deemed
irrelevant; I'm not sure why that doesn't fully explain Justice
Scalia's practices. Justice Scalia doesn't discuss the Bible in his
opinions on constitutional law, either. Should we conclude that he is
afraid of religion?
In any event, I hope I'm not being unfair in my response. I have
enabled comments just in case; I am confident that VC readers will set
me straight. As always -- you know this was coming, didn't you? --
civil and respectful comments only.
References
1.
http://www.acsblog.org/international-affairs-1396-kelly-responds-to-kerr-on-international-law-in-us-courts.html
2. http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1117139865
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