The Court at a Crossroads

In an increasingly global, interconnected world where national borders seem to mean less with each passing day, the Supreme Court is grappling with what to do about foreign legal precedent. The justices differ starkly on whether the Court should look to foreign law to inform its decisions or ignore precedent from other countries when interpreting the Constitution. Is there light at the end of the tunnel for the Supreme Court when it comes to the use of foreign law?

By Adam Liptak

Winter 2009

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On July 19, 2005, the same day that John G. Roberts, Jr. was nominated  to the Supreme Court, Congress held a hearing on an issue that would prove to be a highlight of the future chief justice’s confirmation hearings.

The House Judiciary Committee has, it turns out, a “Subcommittee on the Constitution,” and it had invited four scholars to testify on a proposed resolution condemning  the citation of foreign law by American courts. The subcommittee’s former chairman, Steve Chabot, Republican of Ohio, set the tone in the opening minutes.

“By looking to and relying on the decisions of foreign courts in the interpretation of our Constitution of the United States,” he said, “the judiciary is not only undermining the vision of our Founding Fathers but is chipping away at the core principles on which this country was founded, chipping away at our nation’s sovereignty and independence.”

The hearing was stacked in favor of that perspective, with three of the witnesses competing only in the vehemence of their denunciation of Supreme Court decisions that took into account the views of foreign courts in death penalty and gay rights cases. The exception was Sarah H. Cleveland, who is now the Louis Henkin Professor of Human and Constitutional Rights at Columbia Law School and co-director of its Human Rights Institute. Her testimony was crisp and forthright, and it cannot have endeared her to Mr. Chabot.

“The resolution is contrary to over 200 years of American constitutional tradition,” she told the subcommittee. “Since the founding of this country, the federal courts routinely have considered foreign sources of law in resolving constitutional questions.”

Cleveland listed some towering figures in American law who had done just that—Chief Justices John Marshall, Roger Taney, and Earl Warren, along with Justices Joseph Story, Benjamin Cardozo, Felix Frankfurter, and Robert Jackson—and noted that seven members of the Supreme Court sitting in 2005 had supported the practice. “Indeed,” Cleveland said, “it is the critics of the practice who are the innovators now.”

The resolution on citation of foreign precedent by U.S. courts died in committee, but the issue remains alive. In Congress, the press, the law reviews, and at the Law School, the question of when and how American courts should make use of international and foreign legal materials continues to reverberate.

The popular debate on the topic, as several Columbia Law School professors pointed out in interviews, is freighted with misconceptions. One, as Cleveland told the subcommittee, is that the phenomenon of citing to foreign law is new. A second misnomer is that to cite a decision is to be bound by it.

But there is something broader going on, says Matthew Waxman, an associate professor at the Law School. “The U.S. legal academy is overwhelmingly internationalist and cosmopolitan in outlook,” he notes, “whereas a sizeable segment of the American polity is nationalist and even proud of American exceptionalism.”

The current controversy arose in a limited set of quite well-publicized Supreme Court cases.

“It’s mostly about the death penalty—that’s where it started,” says George P. Fletcher, the Cardozo Professor of Jurisprudence.

Justice Anthony M. Kennedy, writing for the majority in Roper v. Simmons, the 2005 decision striking down the death penalty for juvenile offenders, tried to use careful language.

“The opinion of the world community,” he wrote, “while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”

That wasn’t careful enough for Justice Antonin Scalia, who dissented. “The basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand,” he wrote.

There was a similar exchange in Lawrence v. Texas, the 2003 decision striking down a Texas sodomy law that criminalized sexual intimacy by same-sex couples. In his decision for the majority, Kennedy cited a series of decisions from the European Court of Human Rights. “The right the petitioners seek in this case,” Kennedy wrote, “has been accepted as an integral part of human freedom in many other countries.”

Scalia, dissenting, said the discussion of foreign law in Lawrence was “dangerous dicta.” The Supreme Court, he said, quoting from a concurrence Justice Clarence Thomas had filed a year before, “should not impose foreign moods, fads, or fashions on Americans.”

Professor Cleveland notes that Scalia’s role in creating and stoking the debate cannot be underestimated. “A lot of it has to do with the presence of Justice Scalia on the Court,” she says. “His position has fed into hot-button social controversies in the United States—the death penalty, gay rights, abortion.”

In addition to Thomas, Scalia can count Chief Justice Roberts and Justice Samuel A. Alito, Jr. as allies in his opposition to the citation of foreign law. The Court’s more liberal members—including Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg ’59, and Stephen G. Breyer—have endorsed Kennedy’s view, as had Justice Sandra Day O’Connor before her retirement. Chief Justice William H. Rehnquist, who died in 2005, made statements on both sides of the issue.

In academic circles, even some conservative scholars generally opposed to the
citation of foreign authority in constitutional cases have said they might make an exception for the provision at issue in Roper—the Eighth Amendment’s ban on cruel and unusual punishment. Steven G. Calabresi, a founder of the Federalist Society and a law professor at Northwestern, is one example. “It would be odd to say,” Professor Trevor W. Morrison ’98 notes, “that it’s categorically impermissible to take account of foreign law in considering evolving standards of decency.”

Other provisions of the Constitution—its grant of power to Congress to punish “Offenses against the Law of Nations,” for instance, or its references to making and enforcing treaties—also appear to require or contemplate looking abroad.

“For those who are committed to originalism,” says Lori Fisler Damrosch, Columbia’s Henry L. Moses Professor of Law and International Organization, “it should be understood that the framers wanted us to comply with international law.”

Charles Fried ’60, who is visiting the Law School from Harvard Law School this year, has said the citation of foreign law should be done sparingly, in part because it imposes a burden on courts and litigants. There are questions, too, about whether American judges know what they are doing in discussing materials from other legal systems.

“If the justices are going to do this more,” says Morrison, “there is a question of expertise and competence. But that’s not necessarily to say that the practice should be ruled out. It might instead mean that justices should invest more time and energy in the practice, to be sure they get it right.”

Of course, a lack of facility with international relations and foreign authorities may also be a comment on the insular quality of the American legal culture and the homogeneity of the backgrounds of the current justices—all of whom are former federal appeals court judges.

“The justices of the current Supreme Court have had less real-world experience with diplomacy than many of their predecessors,” Damrosch notes. Chief Justices John Jay, John Marshall, William Howard Taft, and Charles Evans Hughes, for instance, all had substantial international experience before joining the Court.

Cleveland makes a similar point.

“Nineteenth century judges were much more comfortable dealing with international and comparative materials than modern U.S. judges are,” she says. “Many early judges spoke foreign languages, and they were familiar with using foreign legal materials. For example, the debates among the judges in the Dred Scott case regarding whether time spent by a slave in free territory should render a slave free included extensive consideration of the approach of French, English, and other foreign courts to this issue, as well as an analysis of the issue under international law.”

Many defenders of the practice of consulting foreign law also stress that it is not binding on American judges.

“Foreign opinions are not authoritative,” Ginsburg said in a speech to the Constitutional Court of South Africa in 2006. “They set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions.”

Morrison says there is a counterargument to this line of reasoning. “You’re either saying it does no work at all,” he says of citing foreign authorities, “or you’re saying it’s relevant.” And if the cited materials do some work, he suggests, “There will be cases in which they will represent the dispositive factor.” That should be acknowledged, Morrison says, though he does not categorically oppose foreign authorities being dispositive in appropriate cases.

In 2005, Scalia had a public conversation with Breyer about these questions and seemed to acknowledge that judges may learn something from reading the work of their counterparts abroad.

“I mean, just indulge your curiosity,” Scalia told his colleagues. “Just don’t put it in your opinions.”

That comment captures an aspect of the current debate, according to Damrosch.  “A number of members of the current judiciary have been chilled a little bit,” she says.  On the other hand, she adds, “It may not be so important what footnote they put in as it is a thought process.”

At his confirmation hearing in 2005, a few months after the House subcommittee on the Constitution met, Chief Justice John G. Roberts, Jr. indicated that he was opposed to the citation of foreign law in constitutional cases.

“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,” Roberts said. “And yet he’s playing a role in shaping the law that binds the people in this country.

“[With f]oreign law,” the chief justice added, “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.”

Those “methodological concerns” are significant ones, according to Professor Waxman.“There’s an issue of survey bias,” he says, “and concern that a lack of sufficient expertise about the national legal context from which one thread might be pulled could undermine the utility of drawing on a foreign source.”

But several professors said they were disheartened by the way in which an important debate over subtle and varied distinctions has been turned into a political issue.

“You’ve never seen this kind of hostility to international and foreign authority [in the past],” Professor Cleveland notes.

Professor Damrosch points out that she has detected posturing in the debate.

“Those who are on the warpath against what seems to be a benign and non-threatening practice,” she says, “have to appeal to certain constituencies to appear more American than anyone else.”

But others, as Henry Paul Monaghan, the Harlan Fiske Stone Professor of Constitutional Law, points out, are deeply troubled by what they see as threats to democracy and national sovereignty. Monaghan, in a 2007 article in the Columbia Law Review, cited one distinguished holder of that view, Professor Jed Rubenfeld at Yale Law School.

“The institutions and ideologies surrounding international law, at least in its present form, do in fact pose a significant threat to democracy—not by accident, but structurally and by design,” Rubenfeld wrote.

Monaghan himself says the issues surrounding the citation of foreign law can
only be understood “as part of a much larger patchwork of issues,” including the role of international institutions. There is a larger question, he says: “How do we fit into the emerging supranational legal order?” The answer, Monaghan says, is that more engagement with the world is inevitable. “The world,” he says, “is going to get smaller.”

Adam Liptak is the national legal correspondent for The New York Times.

Photographed by Ian Allen

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