Bench Memos

Sotomayor’s Confusion on Use of Foreign Law

Judge Sotomayor’s exchange with Senator Schumer on foreign and international law (available towards the end of this transcript) is either incomprehensible or disingenuous. 

As I have documented, Sotomayor has defended freewheeling resort to foreign and international law while positing an unintelligible distinction between “use” of foreign or international law and “consider[ing] the ideas that are suggested” by international and foreign law.  Among other things, she said that Justices Scalia and Thomas, in “extensively criticizing the use of foreign and international law in Supreme Court decisions,” misunderstand that imaginary distinction.  She stated that she “share[s] 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.”  And she spoke approvingly of recent instances—Roper v. Simmons and Lawrence v. Texas, specifically—in which the Court “looked … to foreign law to help us decide our issues.”

But today Sotomayor seemed to say virtually the opposite.  Here’s a part of Schumer’s exchange today with Sotomayor:

SCHUMER: Let’s go on here a little bit to foreign law, which is an issue that has also been discussed. Your critics have tried to imply that you’ll improperly consider foreign law and sources in cases before you. You gave a speech in April that’s been selectively quoted. Discussing whether it’s permissible to use foreign law or international law to decide cases, you stated clearly that, quote, “American analytic principles do not permit us” — that’s your quote — “to do so.”

Just so the record is 100 percent clear, what do you believe is the appropriate role of any foreign law in the U.S. courts?

SOTOMAYOR: American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given. And my speech explained that, as you noted, explicitly. There is no debate on that question; there’s no issue about that question.

The question is a different one because there are situations in which American law tells you to look at international or foreign law. And my speech was talking to the audience about that. And, in fact, I pointed out that there are some situations in which courts are commanded by American law to look at what others are doing.…

The question of use of foreign law then is different than considering the ideas that it may on an academic level, provide. Judges — and I — I’m not using my words. I’m using Justice Ginsberg’s words. You build up your story of knowledge as a person, as a judge, as a human being with everything you read.

So far as I can tell, the passage that Schumer selectively quotes rests entirely on the unintelligible distinction that Sotomayor draws between “use” of foreign or international law and “consider[ing] the ideas that are suggested” by international and foreign law.  Here’s how it reads in the unofficial transcript of her April speech that I’ve been provided, together with the sentence that immediately follows it:

I’m going to try first to understand the way that American law is structured against the use of foreign and international law because American analytical principles do not permit us to use that law to decide our cases.  But nothing in the American legal system stops us from considering the ideas that that law can give us. 

Perhaps all that Sotomayor means by the distinction is (as she puts it elsewhere in the speech, in paraphrasing Justice Ginsburg) “that foreign opinions are not authoritative, they set no binding precedent for U.S. courts.”  If so, that would hardly provide any solace, but she sure ought to say so clearly.