Posted by Jonathan Adler:
Rosen on Koh and International Norms:
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239673409
Via [1]this post by Professor Bainbridge, I happened upon the
following passage from a 2004 Jeffrey Rosen article in The New
Republic, "Supreme Mistake" (11/8/2004):
The willingness of liberal justices to consult international norms
in constitutional cases has become a rallying cry for social
conservatives: Bork's most recent book is called Coercing Virtue:
The Worldwide Rule of Judges. But, although Bork's book is a
slapdash polemic, other, more thoughtful conservative scholars,
such as Jack Goldsmith of Harvard Law School, have argued
persuasively that too much attention to international law could
thwart U.S. constitutional traditions and reignite a domestic
culture war. There are, after all, dramatic legal and cultural
differences between European and American views about free
expression, privacy, and due process. This means that, if judges
become too willing to look to Europe, they may impose values on
U.S. legislatures that the American public will be moved to resist.
Moreover, there is nothing inherently progressive about European
views on these contested issues: If U.S. courts looked to Europe in
abortion cases, for example, they would allow more restrictions
than Americans now tolerate.
Breyer and Ginsburg have been appropriately cautious in invoking
international norms, citing them only as additional evidence of a
consensus in cases where a clear majority of states have also
rejected a controversial practice, such as sodomy laws or the
juvenile death penalty. But it's possible that younger justices of
a more internationalist bent might be more aggressive about
invoking a purported international consensus to strike down
practices that a majority of the American public continues to
support--such as the death penalty for adults. For example, Dean
Harold Koh of Yale Law School, mentioned as a possible Kerry
Supreme Court nominee, has supported the idea that U.S. courts
should expansively apply international legal precedents without the
authorization of the president and Congress. And some justices have
begun to invoke international law in areas where there is intense
social disagreement, such as affirmative action. If anything could
reignite the culture wars, it would be a decision by the U.S.
Supreme Court to thwart deeply felt currents in American public
opinion in the name of the international community. Given Kerry's
emphasis on international opinion in his campaign, there's no
reason to expect him to be attuned to this danger.
References
1. http://www.professorbainbridge.com/Lists/Posts/Post.aspx?ID=3059
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