If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country. I think that's a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution. And I think that's a misuse of precedent, not a correct use of precedent.Well put. How would Justice Breyer answer that? I think the defense of using foreign law is that you cite it for its persuasive power, not because you regard it as binding authority. So it's not different from quoting a passage from Shakespeare or a philosopher. Thus, the fact that you're "picking out your friends" isn't a problem. And a bonus is — as Breyer has said — that the foreign judges whose opinions are cited — and cited because they are good — gain status in their own countries by virtue of the citation in a United States Supreme Court opinion. That may help the development of democratic values, individual rights, and the rule of law in those countries. Why shouldn't the Supreme Court provide that encouragement? It's not as if judges rigidly follow a method of eliminating all extraneous material from their opinions. As long as they don't slip into the problem of imagining the opinions of foreign courts to be authoritative, why is it wrong?
September 14, 2005
I TiVo-blogged the Roberts hearings (and will do the same today, starting in midafternoon after my trip to the oral surgeon), but I missed a few parts of it due to C-Span's cutting away sometimes. I'm looking at the transcript now and seeing that Roberts gave a nice, crisp answer rejecting the use of the decisions of foreign courts in the interpretation of the U.S. Constitution: