Wiser Cornerites than I have weighed in on the transnational inclinations of some of the lawyerly nominees to this Administration, but it seems to be the way the wind is blowing. For her part, in the observances of her 15th anniversary on the Supreme Court, Ruth Bader Ginsburg returned to the subject of foreign law:
“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Justice Ginsburg said in her comments on Friday…
“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,” Chief Justice Roberts said at his confirmation hearing. “And yet he’s playing a role in shaping the law that binds the people in this country.”
Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.
“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she asked.
A U.S. law professor is presumably writing with regard to U.S. law. A German judge (to use the Chief Justice’s example), if he is even aware of U.S. law, isn’t giving it a thought. But Justice Ginsburg seems to think law operates within a kind of global consensus:
She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.
The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”
I’m not sure whether she has the numbers for her Canadian assertion, but there are far more explicit legal ties between Canada and other British Commonwealth jurisdictions. The Privy Council in London remains the highest court of appeal for many independent nations, from the Bahamas to Mauritius to Kiribati. It’s part of the common legal inheritance to cite precedents from one Commonwealth jurisdiction in another: for example, during my troubles with the Canadian “Human Rights” Commission last year, Julian Porter, QC filed a motion to open up a closed hearing citing not only CBC v. New Brunswick, but also Ambard v. Attorney-General of Trinidad and Tobago.
By comparison, the United States is far more constitutionally contained. By “listening to others,” Justice Ginsburg means, in effect, Europe, Canada and one or two other places: There’s no suggestion she’s interested in Saudi jurists’ views on capital punishment for sodomy or Yemeni precedents on women’s rights. Yet America differs sharply even from those countries in the Common Law and broader western traditions in the protection it affords, say, free speech and the right to bear arms. If Justice Ginsburg is correct in her view that there is a global consensus on the great questions, then America is badly out of whack. And long may that continue: After my experience up north, I value the First Amendment all the more because it is at odds with the way the rest of the world is going.