Our process for selecting federal judges has unfortunately become increasingly controversial and divisive in recent years. That is largely because courts are departing further and further from our laws and traditions, and injecting themselves further and further into our nation’s most sensitive social and political issues–where courts simply don’t belong. But whatever one’s personal views may be with respect to the various controversial rulings that have been issued in recent years, surely all Americans can at least agree that U.S. courts must decide U.S. cases on the basis of U.S. law and U.S. precedent–not the positions of foreign governments and foreign courts. Yet that is precisely what is occurring, according to legal scholars, observers, and the justices themselves.
Through a series of recent rulings, the U.S. Supreme Court has essentially determined that our criminal laws and criminal policies are informed, not only by our Constitution and the policy decisions of the American people through their elected representatives, but also by the rulings of foreign courts and the practices and laws of foreign governments. Indeed, in a series of recent cases, the U.S. Supreme Court has actually rejected its own prior precedents in part because foreign governments or courts have expressed disagreement with those precedents.
For example, in Penry v. Lynaugh (1989), the U.S. Supreme Court held that a state may impose the death penalty on convicted criminals regardless of their IQ, if the state so chooses–but in Atkins v. Virginia (2002), the Court reversed its earlier ruling in part because the Court was concerned about “the world community” and specifically the views of the European Union.
Similarly, in Bowers v. Hardwick (1986), the Court held that each state retains the discretion to determine whether certain kinds of conduct, long considered immoral under our longstanding legal traditions, should or should not remain illegal–but in Lawrence v. Texas (2003), the Court again reversed itself, this time in part because it was concerned about the European Court of Human Rights and the European Convention on Human Rights.
Likewise, in Stanford v. Kentucky (1989), the Court concluded that 16- and 17-year-olds may be subject to the death penalty, if a state chooses to do so–but just last month in Roper v. Simmons, the Court reversed itself yet again, in part because of treaties the U.S. has never even ratified, and because of the views of foreign countries not shared by the people of Missouri and numerous other states.
Still other opinions from Supreme Court justices have relied upon the legal judgments of foreign courts all across the globe, such as Jamaica and Zimbabwe.
Today the Court considers whether to take yet another step down this path. The case involves the state of Texas, and I have filed an amicus brief asking the Court to respect its own precedents and to defer to the people of Texas in their administration of criminal justice consistent with the Constitution. The other side in the case argues in effect, however, that the International Court of Justice can effectively overrule a decision of the U.S. Supreme Court and of the Texas government. In Breard v. Greene (1998), the Court made clear that criminal defendants, like all parties in litigation, may not sit on their rights and then bring up those rights later as a stalling tactic. That basic principle of our legal system, the Court explained, is not undermined just because the accused happens to be a foreign national covered by the Vienna Convention on Consular Relations. Yet even this basic principle of American law may be reversed, after today’s oral argument in Medellin v. Dretke.
This is–to put it lightly–not how our legal system is supposed to work. To the contrary, our Founding Fathers fought the Revolutionary War precisely in order to stop foreign governments from telling us what our laws say. The Declaration of Independence specifically complains that the American Revolution was justified because King George “has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws.” It was “We the People of the United States” who ordained and established a Constitution of the United States, one that includes a mechanism by which only “We the People of the United States” can change it if necessary. And of course, every federal judge and justice swears an oath to “faithfully and impartially discharge and perform all the duties incumbent upon me…under the Constitution and laws of the United States.”
I fear, however, that today some judges may be departing so far from American law, American principles, and American traditions, that the only way they can justify their rulings from the bench is to cite the law of foreign countries, foreign governments, and foreign cultures–because there is nothing in this country left for them to cite for support. What’s more, citing foreign law in order to overrule U.S. policy is especially offensive to our constitutional democracy, because foreign lawmaking is in no way accountable to the American people.
Last week, I introduced Senate Resolution 92, similar to a resolution introduced by Rep. Tom Feeney (R., Fla.) last month. It expresses the sense of the Senate that judicial determinations regarding the meaning of our Constitution should not be based on the judgments, laws, or pronouncements of foreign institutions, except where such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of our Constitution.
The issue of judicial confirmations has divided senators, and that is unfortunate. But surely we can all agree that our courts must follow our laws–not the laws of foreign governments and the rulings of foreign courts.
–The Honorable John Cornyn is an U.S. senator from Texas and a member of the Senate Judiciary Committee. He served previously as Texas attorney general and state supreme court justice.