The following op-ed by Professor Mary Ann Glendon, Judicial Tourism: What’s wrong with the U.S. Supreme Court citing foreign law, originally appeared in The Wall Street Journal on September 16, 2005.
References to foreign law in Supreme Court opinions have become controversial. Nevertheless, it was startling when Sen. Tom Coburn suggested in the Roberts confirmation hearings that justices who cite foreign authority might deserve impeachment. At first glance, it is hard to see why these side glances at what other countries do have provoked such alarm. True, the references have increased somewhat, but they remain rare, and no one suggests that the court has directly based any of its interpretations of the Constitution on foreign authority.
As the issue was framed recently in a debate between Justices Stephen Breyer and Antonin Scalia, it comes down to this: The former says that if a judge abroad has dealt with a similar problem, “Why don’t I read what he says if it’s similar enough? Maybe I’ll learn something.” Yet the latter would exclude such material as wholly without bearing on the meaning of the Constitution; and quite apart from originalism, the different political, constitutional, procedural, and cultural contexts in other nations drastically limit its relevance. Justice Breyer counters that the experience of others “may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem.”
The Breyer view may sound sweetly reasonable; but when one looks at the cases where foreign law has figured prominently, it is evident that the practice is more problematic than proponents have let on. Earlier this year, in Roper v. Simmons, a 5-4 majority struck down the death penalty as it applied to persons over 15 and under 18. Justice Anthony Kennedy stated for the court that “the overwhelming weight of international opinion [is] against the juvenile death penalty,” and that “the opinion of the world community, while “not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” In its effort to delegitimate state laws in question, the Roper majority, including Justice Breyer, not only reached out to “international opinion,” but selectively cited various social science materials.
There is, of course, no such thing as a “world community.” As Eleanor Roosevelt and her fellow drafters of the Universal Declaration of Human Rights well understood, universal rights are premised on the acceptance of a legitimate pluralism in forms of freedom. Human rights become real only when brought to life in concrete cultural settings. In our system, rights are protected not only by courts but by the structure of our government–designed to give us citizens a say in the kind of society we wish to bring into being, limited only by constitutional text and tradition. But neither our design for government nor our model of judicial review has been widely copied. “International opinion” usually means the opinions of like-minded judges, academics, and journalists who wish to use the courts to impose their vision of the good society.
In Roper, the absence of an American consensus on the death penalty prompted Justice Sandra Day O’Connor to dissent. Though not averse to consulting foreign law, she could “assign no such confirmatory role to the international consensus described by the Court.” The majority had simply substituted its own “independent moral judgment” for the judgments of many state legislatures that juries are capable of determining whether the youth of a murderer should be taken into account in the penalty phase.
The problem is not reference to foreign law: It is how foreign law is used by judges who usurp powers reserved under the Constitution to the people and their elected representatives, and whose desire to “learn” is limited to finding arguments in support of conclusions that have little constitutional warrant. The learning process of the foreign law enthusiasts, moreover, is selective. They have shown no disposition to explore why most democracies take a different view from theirs on exclusion of illegally obtained evidence, regulation of abortion or separation of church and state. With reason, Justice Scalia accuses them of “looking over the heads of the crowd and picking out their friends.”
What has been overlooked in these debates is the crucial difference between the legitimate use of foreign material as mere empirical evidence that legislation has a rational basis, and its use to buttress the court’s own decision to override legislation. Take Lawrence v. Texas, the decision striking down criminal penalties for homosexual sodomy, where Justice Kennedy, joined by Justice Breyer, wrote, “The right petitioners seek . . . has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.” The remarkable implication is that it is up to our legislatures to justify a different view of human rights from that accepted elsewhere. This gives short shrift to the fundamental right of Americans to have a say in setting the conditions under which they live–the right that is at the very heart of our unique democratic experiment. Contrast the responsible use made of foreign law by Chief Justice William Rehnquist in Washington v. Glucksberg, to support Washington state’s legislative prohibition of assisted suicide in an opinion noting that in “almost every state–indeed, in almost every western democracy–it is a crime to assist a suicide.”
The importance of the distinction between these two modes of use cannot be exaggerated. It is not only a question of respecting the separation of powers. Those who believe the Washington legislature got it wrong can work to change the law through the ordinary democratic processes of persuasion and voting. But in the U.S., unlike in countries whose constitutions are easier to amend, the court’s constitutional mistakes are exceedingly hard to correct. The unhealthy ripple effects of judicial adventurism are many: Legislatures are encouraged to punt controversial issues into the courts; political energy, lacking more constructive outlets, flows into litigation and the judicial selection process.
Few judges have understood the distinction between legitimate and problematic uses of secondary authorities so well as the late Henry Friendly, one of the most respected judges never to sit on the Supreme Court. In the 1970s, when judicial citation of social science materials was being hotly debated, Judge Friendly defended their use but cautioned that when judges use social science or foreign material to substitute their own judgment for that of the legislature, their legitimacy is at its lowest ebb. For all who hope the next Supreme Court justice will possess interpretive skill and respect toward authoritative sources of law, it is an encouraging sign that John Roberts received his first lessons in judging as law clerk to Henry Friendly.
Ms. Glendon is Learned Hand Professor of Law at Harvard Law School.