Posted by Orin Kerr:
Citing Foreign Law, the Culture Wars, and the Law Review Article Hypo:
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239637191
In [1]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 ways, the other side is pretty much
guaranteed to go bonkers.[2] 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.
Of course, 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 [3]Gonzales v. Carhart (with its suggestion that
abortion may be harmful to the mental health of the mother) and
Justice Scalia's dissent in [4]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
[5]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 comment , "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.
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.
References
1. http://volokh.com/posts/1239605727.shtml
2. http://volokh.com/archives/archive_2005_04_10-2005_04_16.shtml#1113424503
3. http://www.supremecourtus.gov/opinions/06pdf/05-380.pdf
4. http://www.law.cornell.edu/supct/html/02-102.ZD.html
5.
http://www.huffingtonpost.com/rep-barney-frank/why-i-called-justice-scal_b_179434.html
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