The controversy surrounding citing foreign law and foreign judicial decisions errupted because of two Supreme Court decisions citing foreign law in deciding domestic issues relating to prosecuting sodomy and execution of juveniles. Most recently the issue is in the news because of Obama's nomination of Harold Koh as chief Legal Adviser to the State Department. Koh's views of "transnational" law and incorporating foreign legal principles into domestic matters, is a source of much controversy.
Ginsburg appears to comment on the Koh nomination, although not by name, as follows:
So far, so good (not that I necessarily agree with her, but I understand her point). But here's where it gets odd:“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....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.
This comment reflects a fundamental mistake in viewing the role of any court in this country. A court should decide cases based on the facts and law before it. What anyone else, and most particularly foreign courts, think of the decision should be irrelevant to the decision-making process.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.”
A popular, or more widely cited, decision is not necessarily a better decision. In fact, some of the decisions we hold most dear (such as Brown v. Board of Education, ending segregation in schools) were highly criticized at the time and overturned earlier case law. A court decision involving real parties should not be influenced by considerations of whether the holding would be cited with approval abroad.
The Court owes it to the parties and the Constitution (Article III) only to resolve the cases and controversies before it, not to engage in or worry about legal public relations.
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UPDATE: Jonathan Turley has an interesting column in The Washington Post titled "The Free World Bars Free Speech." The column does not concern Gingsburg or Koh, but it is relevant. Turley points to the increasing tendency of the international community, other than the U.S., to outlaw criticism of religion, which in reality means outlawing criticism of Islam. The U.N., headed by a General Assembly President who embraces the leaders of Iran and Venezuela, among other tyrants, is leading the way. The U.N. is so corrupt, and run by so many tyrants, that it is dangerous and ultimately counter-productive to bend our principles to the international community. See my prior post, UN Official Accuses US Of Demonizing Ahmadinejad.
UPDATE No. 2: There is a good discussion by David Bernstein at Volokh Conspiracy of what is wrong with Justice Ginsburg's view.
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Related Posts: Obama Bows, Koh Suffers, Is Harold Koh Being Borked?
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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.”
ReplyDeleteI would say she's right about the Canadian Courts being cited more than the US Courts. But not for her reason.
In OZ law lecturers have a saying along the lines of:
"Cite precedents from Australian Courts best, UK Courts are good. NZ and Canadian Courts are acceptable. Hong Kong and other Commonwealth countries at a stretch. US or European courts if desperate."
It's a matter of court systems and constitutions. Not reciprocity.
Love the blog, by the way.
I wonder if she would accept Iranian Courts too? Or is she selective on which foriegn courts she likes? Who judges that?
ReplyDeleteReading the article, nothing there supports your assumption that Ginsburg was saying that because not citing other country's courts (allegedly) makes the SCOTUS' decisions less influential, the Justices should decide cases based on that belief.
ReplyDeleteWithout the full transcript of Ginsburg's remarks, it's unfair of you to assume that's what she was saying.
I have a little bit of an understanding on law. At the university level I studied Commercial law as part of my degree. It had been my understanding that the law courts do not refer to "international" decisions to determine cases, but to the appropriate legislation as well as case law aka decisions already made. Since I cannot remember the legal terms used, I will not make a fool of myself.
ReplyDeleteI did my studies in Australia. It was ok to refer to decisions in the British courts. However, there is a time when that was no longer appropriate when Australia cut its ties. On the other hand, when I went through my studies it was inappropriate to use laws and decisions in the USA. On the other hand, that is what happened when the Australian courts followed the decision of Roe vs Wade. There was never any legal precedent for doing that.
Gingsburg is speaking as one who is an activist judge and one who has gone outside what is appropriate.
Even in my country, Australia, international laws are not acceptable unless they have been adopted - heaven forbid if KRudd decides to adopt that nonsense about freedom of speech relating to Islam. We should have the right to speak up against human rights abuses.