Bench Memos

Re: Judge Sotomayor’s Misreliance on Foreign and International Law

Two weeks ago, I discussed Judge Sotomayor’s terribly muddled April 2009 speech in which she offers a blanket defense of freewheeling resort to foreign and international legal materials.  I now have an unofficial transcript of the speech (the video of which is available here) and offer these longer excerpts from it, together with my brief bracketed commentary.  I have in some very minor instances cleaned up the transcript to eliminate false starts.  I’ve also included references to the corresponding portions of the video.

[0:00]  I always find it strange when people ask me, “How do American courts use foreign and international law in making their decision?” I pause and say:  We don’t use foreign or international law, we consider the ideas that are suggested by international and foreign law. That’s a very different concept. [EW:  Hunh???]  And it’s a concept that is misunderstood by many, and it’s what creates the controversy that surrounds—in America especially—that surrounds the question of whether American judges should listen to foreign or international law.  And I always stop and say, how can you ask a person to close their ears? 

Ideas have no boundaries, ideas are what set our creative juices flowing, they permit us to think. And to suggest to anyone that you could outlaw the use of foreign or international law [EW:  But I thought that she didn’t “use” them?  What happened, in the space of a few sentences, to her supposedly fundamental distinction?] is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to good ideas, to some good ideas—there are some ideas we may disagree with for any number of reasons.  But ideas are ideas, and whatever their source—whether they come from foreign law or international law, or a trial judge in Alabama, or a circuit court in California or any other place—if the idea has validity, if it persuades you, si te convince, then you are going to adopt its reasoning. [EW:  Note the utter failure to connect the “validity” of the idea to the substance of the American law being interpreted.]  If it doesn’t fit, then you won’t use it. And that’s really the message that I want you to leave with here today.  [2:41]

[14:20] All of this said is not to suggest, however, that we don’t use the ideas of foreign courts in some of our decisionmaking.  Very recently in New York, for example, the Court of Appeals in New York looked to foreign law to decide how to interpret the contract rights under the uniform, under the treaty for contracts.  Similarly, California has used it in other contexts, so have American courts. 

But this use does have a great deal of criticism.  The nature of the criticism comes from, as I explained, the misunderstanding of the American use of that concept of using foreign law. And that misunderstanding is unfortunately endorsed by some of our own Supreme Court Justices.  Both Justice Scalia and Justice Thomas have written extensively criticizing the use of foreign and international law in Supreme Court decisions.  They have a somewhat valid point. They argue that because there are so many international and foreign laws and so many of them vary, that a judge can look to the law of any country to support his or her own conclusion because they’ll find someone who will agree with them. [EW:  Scalia’s and, I trust, Thomas’s primary argument against the use of contemporary foreign and international legal materials is the (usual) irrelevance of those materials to determining the meaning of provisions of the American Constitution and federal statutory law.]  So it’s easy to say this is a good idea because England likes it, forgetting to mention that Russia doesn’t, Russian law doesn’t, or vice versa. It is a point that is validly taken, but I think I share more the ideas of Justice Ginsburg in thinking or in believing that unless American courts are more open to discussing the ideas raised by foreign cases and by international cases that we are going to lose influence in the world. [EW:  What a bizarre rationale.

Justice Ginsburg has explained very recently, in an address to the South African Constitutional Court, that foreign opinions are not authoritative, they set no binding precedent for U.S. courts, [EW:  Yes, justices who are just making it up anyway always want the freedom to pick and choose] but they can add to the story [sic] of knowledge relevant to the solution of a question.  And she’s right.  We have looked in some Supreme Court decisions to foreign law to help us decide our issues.  So, for example, in Roper v. Simmons, Justice Kennedy noted that for almost a half century the Supreme Court has referenced the law of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment prohibition of cruel and unusual punishment.  And in that case the Supreme Court outlawed the death penalty of juveniles in the United States. 

Similarly in a recent case, Lawrence versus Tribe [sic], the Supreme Court overturned a Texas state law making it a crime for two people of the same sex to engage in certain intimate sexual acts, and the Justice referred to the repeal of such laws in many, many states and in many countries of the world.  In both those cases, the courts were very, very careful to note that they weren’t using that law to decide the American question, they were just using that law to help us understand what the concepts meant to other countries and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking. There may well be times where we disagree with the mainstream of international law, but there is much ambiguity involved. And I for one believe that if you look at the ideas of everyone and consider them and test them, test the force of their persuasiveness, look at them carefully, examine where they are coming from and why, that your own decision will be better informed.  [EW:  Again, what connection does this have to the substance of the American law being interpreted?]  [19:50]


[20:50] To the extent that we as a country remain committed to the concept that we have freedom of speech, we must have freedom of ideas, and to the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system.  [EW:  Non sequitur alert!  Why is it that “international and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system”?]  It is my hope that judges everywhere will continue to do this because I personally believe that it is part of our obligation to think about things, not outside of the American legal system, but that within the American legal system we’re commanded to interpret our law in the best way we can. And that means looking to what anyone has said to see if it has persuasive value. [21:51]