More on Justice Breyer and foreign law: In today’s Wall Street Journal, Adam J. White reviews Breyer’s new book, American Law and the New Global Realities, and criticizes Breyer’s sloppy treatment of the legal debate over the role of foreign law in interpreting the Constitution:

Unfortunately, when the book turns from statutes to broader questions of how to interpret the Constitution, its claims become less persuasive. In cases involving the death penalty, gay rights and affirmative action, Justice Breyer and other members of the court have invoked foreign practices and judicial opinions to support their interpretation.… Such citations have sparked criticism from Justice Antonin Scalia and others who focus instead on the Constitution’s original meaning.
But Justice Breyer largely sidesteps those critics in “The Court and the World.” First he suggests—surely in jest—that they may be suffering from “some version of the psychological phenomenon of displacement,” railing against his methodology when what they really dislike are his conclusions. Ultimately he claims that critics misunderstand his use of foreign law. For judges who approach constitutional interpretation as he does, as “a kind of problem solving,” foreign opinions are simply one consideration among many. The decisions of foreign authorities are not binding, he says; they merely help American judges “produce better decisions without constraining their decisional autonomy.”
In fact, Justice Breyer’s critics rarely worry that judges who cite foreign law will do so too rigidly. Their concern is that such judges, lacking an anchor in the Constitution’s original meaning, will invoke foreign law in an ad hoc way, whenever it is consistent with their own views. In any event, the critics argue, international law is irrelevant to the court’s task of interpreting the Constitution’s text. As Justice Antonin Scalia observed in a 2006 speech on “outsourcing American law,” foreign experience may be helpful in writing a constitution, but the court’s job is to interpret the words of the Constitution we already have, as they were originally understood.