Supreme Court Justices Hold Rare Public Debate on Law (Scalia/Breyer)

In Washington, two Supreme Court justices recently took the unusual step of holding a public debate on a point of law before an audience of college students. At issue was how much attention the U.S. Supreme Court should pay to foreign law when it may have some relevance to a case before the high court.

Of the three branches of the U.S. government, the Supreme Court has the reputation of being the most private. Cameras are not allowed inside the courtroom, and the nine justices decide the cases in private. For the most part, the justices do not discuss their opinions with the press.

But recently, two of the nine justices took the unusual step of holding an informal public debate at the American University in Washington on the relevance of citing foreign law in U.S. court decisions.

The debate pitted one of the high court's leading conservative voices, Justice Antonin Scalia, against one of the court's more liberal members, Justice Stephen Breyer.

In recent years, some of the Supreme Court justices have referred to foreign law to bolster their opinions in cases involving the death penalty and state laws that ban sex between homosexuals.

To put it mildly, Justice Scalia is not a fan of citing foreign law when deciding legal questions in a U.S. court. He prefers to cite American legal precedents in his opinions.

"…The standards of decency of American society. Not the standards of decency of the world. Not the standards of decency of other countries that do not have our background, that do not have our culture, that do not have our moral views. Of what conceivable value would foreign law be?" he asked.

On the other side, Justice Breyer has become one of the high court's leading proponents of at least taking notice of what jurists in other countries might be saying about a given issue, whether it is the death penalty or the indefinite detention of terrorists.

"So, here you are trying to get a picture of how other people have dealt with it,” he noted. “Am I influenced by that? I am at least interested in reading it and the fact that this has gone on all over the world and people have come to roughly similar conclusions, in my opinion, was a reason for thinking that is at least the kind of issue that maybe we ought to hear in our court because I thought our people in this country are not that much different than people in other places."

Justice Breyer argues that citing foreign law in U.S. courts could have the added benefit of encouraging democracy in countries where court systems are struggling to gain their judicial independence.

"In some of these countries, there are institutions, courts, that are trying to make their way in societies that did not used to be democratic,” he added. “And they are trying to protect human rights, they are trying to protect democracy, they have a document called a constitution and they want to be independent judges. And for years, people all over the world have cited the [U.S.] Supreme Court [so] why do we not cite them occasionally. They will then go to some of their legislators and say, see, the Supreme Court of the United States cites us and that might give them a leg up (an advantage) even if we just say it is an interesting example."

Justice Antonin Scalia says he has no problem with his fellow Supreme Court justices reading foreign legal opinions. He just does not think his colleagues should cite them as judicial precedents in their legal arguments.

"It is nice to know that we are on the right track and have the same moral and legal framework as the rest of the world,” he said. “But we do not have the same moral and legal framework as the rest of the world and never had. If you told the framers of the [U.S.] Constitution that what we are after is to do something that is just like Europe, they would have been appalled.”

The debate over the wisdom of Supreme Court justices citing foreign law has now moved into the Congress. Some conservatives are pushing a resolution that criticizes Supreme Court justices who cite foreign legal authority. An attempt to pass a similar law failed last year in the U.S. House of Representatives.

LAW OF THE LAND
Justice: Can Constitution
make it in global age?
On TV, Breyer wonders whether it will 'fit into governing documents of other nations'

Posted: July 7, 2003
1:00 a.m. Eastern

© 2003 WorldNetDaily.com

In a rare appearance on a television news show, Supreme Court Justice Stephen G. Breyer questioned whether the U.S. Constitution, the oldest governing document in use in the world today, will continue to be relevant in an age of globalism.

Speaking with ABC News' "This Week" host George Stephanopoulos and his colleague Justice Sandra Day O'Connor, Breyer took issue with Justice Antonin Scalia, who, in a dissent in last month's Texas sodomy ruling, contended the views of foreign jurists are irrelevant under the U.S. Constitution.

Breyer had held that a ruling by the European Court of Human Rights that homosexuals had a fundamental right to privacy in their sexual behavior showed that the Supreme Court's earlier decision to the contrary was unfounded in the Western tradition.

"We see all the time, Justice O'Connor and I, and the others, how the world really – it's trite but it's true – is growing together," Breyer said. "Through commerce, through globalization, through the spread of democratic institutions, through immigration to America, it's becoming more and more one world of many different kinds of people. And how they're going to live together across the world will be the challenge, and whether our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generations."

In the Lawrence v Texas case decided June 26, Justice Anthony Kennedy gave as a reason for overturning a Supreme Court ruling of 17 years earlier upholding sodomy laws that it was devoid of any reliance on the views of a "wider civilization."

Scalia answered in his dissent: "The court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is ... meaningless dicta. Dangerous dicta, however, since this court ... should not impose foreign moods, fads, or fashions on Americans," he said quoting the 2002 Foster v. Florida case.

Scalia's scathing critique of the 6-3 sodomy ruling was unusual in its bluntness.

"Today's opinion is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct," he wrote. Later he concluded: "This court has taken sides in the culture war."

Both O'Connor and Breyer sought to downplay antipathy between the justices – no matter how contentious matters before the court become. O'Connor said justices don't take harsh criticisms personally.

"When you work in a small group of that size, you have to get along, and so you're not going to let some harsh language, some dissenting opinion, affect a personal relationship," she said. "You can't do that."

Breyer agreed.

"So if I'm really put out by something, I can go to the person who wrote it and say, 'Look, I think you've gone too far here.'"

O'Connor, too, seemed to suggest in the ABC interview that the Constitution was far from the final word in governing America. Asked if there might come a day when it would no longer be the last word on the law, she said: "Well, you always have the power of entering into treaties with other nations which also become part of the law of the land, but I can't see the day when we won't have a constitution in our nation."

Asked to explain what he meant when he said judges who favor a very strict literal interpretation of the Constitution can't justify their practices by claiming that's what the framers wanted, Breyer responded: "I meant that the extent to which the Constitution is flexible is a function of what provisions you're talking about. When you look at the word 'two' for two representatives from every state in the United States Senate, two means two. But when you look like a word – look at a word like 'interstate commerce,' which they didn't have automobiles in mind, or they didn't have airplanes in mind, or telephones, or the Internet, or you look at a word like 'liberty,' and they didn't have in mind at that time the problems of privacy brought about, for example, by the Internet and computers. You realize that the framers intended those words to maintain constant values, but values that would change in their application as society changed."

In an unrelated matter, O'Connor indicated on "This Week" that she would likely serve out the next term on the court, dismssing speculation that she was about to retire.

The current court is split between Chief Justice William Rehnquist, Clarence Thomas and Scalia, who tend to hold the traditional constitutionalist approach to rulings, and the majority of O'Connor, Breyer, Kennedy, Ruth Bader Ginzburg, David H. Souter and John Paul Stevens, who tend to believe in the concept of a "living Constitution" subject to changes in public opinion and interpretation.

I saw part of this telecast and Breyer made a distinction as to when he looked to non-US decisions and why. His case he made was better then I anticipated.

He said, first, each justice should turn away from their individual opinion, prejudice or preference and get outside-of-self, or words to that effect.

He then said that where US case law is silent and doesn't have decisions to go back to for observation, other nations judicial records may show how others have decided similar issues so that the justice researching same can seperate himself from their own opinions. Once observed, then it is only fair for those reading there opinions to be shown the path of thinking and reseach they have taken so that it is clear that the justice has made his reasoning and reflection obvious.

Scalia even gave some credence to this line of reasoning when it was fully restricted to such a narrow area. His complaint was when our law was obviously well founded it should not be circumvented without a clear cause within our own law.

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