I TiVo-blogged the C-Span feed of the Justice Scalia/Justice Breyer debate about the use of foreign law in American constitutional interpretation that took place yesterday afternoon at American University. I made my contemporaneous typings late last night, after a hard day's work and while drinking a glass of red wine, and let me post them now before I taint my impressions with any of the news reports, about which I'll blog in the next post. Here goes.
When the law school dean's introduction refers to the two Justices as "towering figures," the audience laughs and then we see a close-up of Justice Scalia. Presumably, he had some amusing reaction to the phrase, but the C-Span editing is too late to include us in the hijinks.
The Justices are sitting in gold brocade wing chairs, symbolizing the grandeur of the occasion. This gives a certain international look to the set: it resembles a meeting of Chinese leaders and not any sort of American scholarly event I've ever seen.
The introductory speeches are long, and Scalia betrays some impatience, tapping his hands on the chair arms. Justice Breyer places his fingers on his lips and gazes upwards, looking (to me) like one of the apostles.
Finally, the moderator, Norman Dorsen, is given the microphone. Dorsen reads the résumés of the two Justices and emphasizes the similarity of their backgrounds. Surprise: they both went to Harvard!
Dorsen is going to begin with some questions and then get out of the way. What body of foreign law are we talking about? Just foreign constitutional law or the interpretation of international treaties? How are we talking about using this law: as authority or just for whatever persuasive value it may happen to have? Why are we using foreign law: to enhance the legitimacy of our decisions within the U.S. or to the rest of the world?
Justice Scalia goes first and says you really should ask Justice Breyer and not me, because I don't use foreign law (except to interpret treaties). In constitutional law, it might be "nice" to know our law is like that of the rest of the world, but it isn't. The Framers would have been "appalled" if you'd have told them what they were doing is making us like the rest of the world. They didn't have much respect for European countries. He notes that Madison was contemptuous of countries that were "afraid" to let their citizens bear arms.
Scalia suggests that people who want to use foreign law want to use it selectively. They never say let's abandon the exclusionary rule or strong abortion rights because other countries don't have these things. And they only want to use the foreign law that supports what they want to do anyway, as in Lawrence, when the foreign law that supported the decriminalization of homosexual sodomy was cited, but foreign law that did not was avoided. Obviously, they don't want it to be authority. So then what is the criterion for using it? Whenever it agrees with you?
Justice Breyer says law "emerges" and the Supreme Court is just part of a "conversation" about what law is. Judges, professors, law students, lawyers – all are part of this "giant, messy -- unbelievably messy -- conversation." So Justices need to get out more, he says. Then he cracks a joke about how he's only been recognized as a Supreme Court Justice out in public ten times, and nine of those times, he was thought to be Justice Souter.
Scalia tries to top him, saying Breyer pretends to be Justice Souter on those occasions. (That reminds me of the fact that, years ago, strangers would sometimes ask my father for his autograph. He looked like Frank Sinatra, so he would sign "Frank Sinatra" for them.)
Breyer says people naturally cite what is "useful." Of course, it doesn't "bind" the court, but foreign judges "are human beings," and they have problems to solve, and the ways they've figured out to solve problems are useful to us "if it's similar enough." Why shouldn't I read it? And if I read it, why shouldn't I cite it? They cite us. And if we cite them, it might help them establish the rule of law where they are.
He talks about his own uncertainties, notably in the school vouchers case. He was influenced by France and Britain, which subsidize religious schools. What he believes in doing is "opening your eyes to things that are going on elsewhere -- use it for what it's worth." He notes that one of the reasons for the controversy is that the citation of foreign law has come up in the context of gay rights, abortion, and the death penalty – and these are already controversial subjects.
Back to Scalia: Judges who cast about for cases from other countries are really only looking inside themselves, for their own moral perceptions. But he doesn't want "that responsibility." He's only willing to look at old English cases. "I sleep very well at night, because I read old English cases. And there's my answer. " Scalia's point in this debate is really the same point he always makes about constitutional interpretation.
Breyer: You look other places precisely because you don't trust your own opinions.
Scalia: The only reason it can make sense to you to think it matters what some judge in another country thinks is because in fact you DO trust your own opinion.
Basically, Breyer is claiming a kind of humility in looking to what others think, which Scalia portrays as cloaked arrogance.
About halfway through the session, the two Justices have clearly made their points. It goes on and the clear points are restated clearly, but I won't trouble you with resummarizing them. Finally, members of the audience ask questions, and the questioners don't resist the temptation to give little speeches and ramble through multiple questions. It is very late, and I mentioned that glass of wine, but my impression is that nothing new is said.
UPDATE: The armchairs look international, as noted above, and thus symbolically support the Breyer side of the debate.