Wednesday, June 30, 2004

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The Supreme Court's international influences

"Should foreign or international legal decisions ever be considered relevant to United States Supreme Court rulings?" That's the question over at Legal Affairs magazine.

Vicki Jackson is enthusiastic about the proposition.

Richard Posner is not so enthusiastic about it.

Go read both and them post your own thoughts.

posted by Dan on 06.30.04 at 10:40 AM


Under what Constitutional theory are foreign or international court decisions in the least relevant ?

The only legitimate basis would be the SCOTUS acting as a court of original jurisiction in a case where the US is party to an international convention.

Even in that instance the interpretation of the treaty's clauses by the executive and the reservations of the Senate during ratification have the Constitutional primacy over the opinion of an alien body - one without jurisdiction over or democratic accountability to American citizens.

When justices cherry-pick foreign cases to justify their decisions they are legislating from the bench and violating core principles of the Constitution.

posted by: mark safranski on 06.30.04 at 10:40 AM [permalink]

*sigh* no, no, no. If the Supreme Court uses the decisions of foreign or international courts as *authoritative*-- that is, as dictating a decision just in virtue of the fact that the other court said something-- then it's acting wrongfully. If it uses them as persuasive precedent, looking at the arguments offered by courts in other constitutional democracies (and, especially, the other constitutional federal democracies, and, most especially, the other common-law constitutional federal democracies) for solutions to problems that arise in similar ways in U.S. jurisdictions, then it's no more problematic, and sometimes more helpful, than citing law review articles (which, by the way, justices are free to "cherry-pick".)

posted by: Jacob T. Levy on 06.30.04 at 10:40 AM [permalink]

Jacob T. Levy managed to sum up Richard Posner's (well though out) three-page essay in one paragraph.

Well done!

posted by: Thorley Winston on 06.30.04 at 10:40 AM [permalink]

The only way I could see foreign law being at all relevant to the USSC in one of their rulings is if the reference was supportive in a cultural meaning sense, within western society.

As an example, much of our early precidents were founded on precidents set within the English courts.

But such references should be limited to the period prior to the Revolution, since our cultures have vectored slightly away from each oether after that time.

posted by: Bithead on 06.30.04 at 10:40 AM [permalink]

American courts have relied for more than two hundred years on foreign decisions in fields such as admiralty, international commerce, etc. Foreign decisions in such matters are useable precedents, especially those from common law (British Commonwealth) jurisdictions.

Should American courts ever rely on foreign decisions to interpret the U.S. Constitution, it would be trouble. That hasn't happened yet.

Non-lawyers do not understand these distinctions. Some don't want to either as that might interfere with ritual chest-beating.

posted by: Tom Holsinger on 06.30.04 at 10:40 AM [permalink]

Agreed. One is equally problematic as the other in my view ;o)

Cleverness or even sound reasoning when it might occur in a journal or a foreign court still lacks relevance.

I think there's a substantive difference from citing Anglo-Saxon to English to British common law cases than that of other constitutional democracies ( much less sham judiciaries in unfree states or international bodies). The United States legal and Constitutional system grew out of Britain's and a fairly direct historical chain of continuity exists.

Cited with enough frequency by SCOTUS, foreign court decisions cease being merely analagous and will become *authoritative*.

posted by: mark safranski on 06.30.04 at 10:40 AM [permalink]

If a court uses a foreign law in deciding a case, it would only hold until Congress addresses the issue, right? As long as they are not trying to interpret the Constitution using a foreign source -- that would seem to be an impeachable offense -- and it's easily addressed / overturned by elected representatives it doesn't seem like much of a problem.

If they ignore something that's addressed in the Constitution or in any way try to undermine it, again, impeachment would seem appropriate.

posted by: Robert Prather on 06.30.04 at 10:40 AM [permalink]

A bit late to the party on this one Danny Boy.
This is old news.

posted by: Huh? on 06.30.04 at 10:40 AM [permalink]

Posner's four objections to precedential citations of foreign courts break down to one that is of direct daily concern to lawyers and judges, two that are not but that lawyers and judges are likely to think ought to be, and one that is of greatest concern to the rest of us.

His first objection has to do with "promiscuous" citations: in other words, with adding a vast new field of rulings for courts to have to plow through when considering cases. This is already an issue in most American courts, which take steps (such as forbidding citations of unpublished rulings) to keep the problem from becoming unmanageable. His second and third objections -- respectively, to the ignorance of the circumstances and history of foreign jurisprudence on the part of most American judges and to the fact that unlike American judges appointed and confirmed by officials elected by the American people foreign courts have no accountability whatever in this country -- speak to issues most lawyers do not have to encounter in daily practice but which might induce some of them to be cautious if they were faced with the opportunity to cite a foreign decision as precedent in an American case (how did this European court get appointed? Is that translation of a Brazilian court's ruling from the Portuguese reliable?).

Posner's final objection is the one that matters to us. This is his objection to judicial "fig-leafing," the practice of citing foreign decisions as precedent for decisions that judges are really making on their own, in defiance of American precedent and statutory law. He thinks fig-leafing is bad, and that there is too much of it already. Jackson, after dwelling for many paragraphs on informational uses of foreign precedents to which neither Posner nor many other people object, takes a very different view.

This is the root of their difference. If you are committed to advancing certain political causes through the courts, you are less likely to turn away from arguments that might speed their progress. Citations of foreign precedents in death penalty cases, affirmative action cases and in cases involving issues related to Lawrence is attractive to advocates of one side -- not of the law, but of the substantive issue. In Posner's view the substantive issues are primarily the people's to decide through their elected representatives. I fear Jackson is likely to reject that view when the people's will conflicts with what she thinks it ought to be.

posted by: Zathras on 06.30.04 at 10:40 AM [permalink]

Non-lawyers do not understand these distinctions. Some don't want to either as that might interfere with ritual chest-beating.

Or they could, as mark safranski suggested, recognize that the distinction between the two could (and considering the way some courts have interpreted the law, it might be more likely than we think) become blurred and eventually erased over time if this practice becomes more commonplace.

Granted the distinction is still there now but I’m a little hesitant to write off concern it won’t be there ten years from now as just “ritual chest-beating.” They could just be writing out of concern for what they (not unjustifiably so IMO) think is likely to happen in the future.

Just my $0.02.

posted by: Thorley Winston on 06.30.04 at 10:40 AM [permalink]

It seems to me that judge Posner takes aim at a pretty broad class of uses of foreign precedent -- much broader than Jacob suggests. Posner attacks even "limited precedential weight" given to foreign courts. What is precedential and what is not is a matter of some dispute, at least in the real world of political discussion about judicial decisionmaking -- witness the arguments going on at Southern Appeal over Scalia's recent reference to the foreign law, for example.

Which leads me to think that it's politically unhelpful to try to tell the Court not to cite foreign law for "limited precedential" purposes, since the Court will get nailed by some critics no matter how narrow their use of foreign law. Consider that Justice Ginsburg's recent citation to Indian experience with affirmative action would probably fall squarely within Posner's permitted realm of citation, and you can see that following his advice will not spare the Court from much criticism.

posted by: Brett on 06.30.04 at 10:40 AM [permalink]

Foreign persuasive precedent is terrifying. The deep feeling of disenfranchisement felt as a result of the court's highhanded decisions of the past (e.g. Roe) is multiplied when the basis for a decision is some cherry-picked foreign source that was not in any way influenced by our constitution, legal tradition, or values. Imperial courts indeed. Massively tips the balance of power away from the democratic brances of gov't, and has the potential to breed well-founded cynicism about the soverighnty of the people.

posted by: rds on 06.30.04 at 10:40 AM [permalink]

First I admit that I didn´t read the two
differing opinions. :)
Still, I can understand and agree with the
fear of "Foreign persuasive precedent is terrifying".
I totally agree!!!

That said, I don´t quite understand how
US courts can declare to hear cases happening
entirely outside of the USA.

(Alien Tort Claims Act of 1789)
"The Alien Tort Claims Act (ATCA) of 1789
grants jurisdiction to US Federal Courts
over "any civil action by an alien for a
tort only, committed in violation of the
law of nations or a treaty of the
United States."

Seems to me that you Americans want to
avoid International law from FOREIGN
courts while expecting that any foreign
nation submits to YOUR American Federal
courts rule?

Am I wrong here?


posted by: Detlef on 06.30.04 at 10:40 AM [permalink]

Without retreading the ground already well explained by Zathras, rds and Thorley Winston I'd like to add an additional point:

The factual specifics of American jurisprudence and the state of current practice is a technical and factual one, well suited for experts such as lawyers and law professors. The proper boundaries for the practice of law and the jurisdiction of American courts is a *political* question - and one that every citizen is equally entitled to have a say, not merely - actually especially not - just those folks with a J.D.

The movement to cite the decisions of foreign courts, when they have no direct and obvious connection as in very few, narrowly defined instances where SCOTUS has OJ in cases involving IL - is a potentially enormous aggrandizement of power at the expense of the legislative and executive branches. Advocates of this view understand that very well - it promises to open up new worlds of justifications for them to place limits upon the acts of the democratic branches.

A careful perusal of the Federalist Papers will demonstrate that such an innovation is about as far from what the framers intended for the role of judicial branch as could be imagined. Being able to invoke precedents that are organically unrelated to American law is a semantic sleight of hand for legislation - the power to create new statutes essentially out of wholly new ideas. Understandably, lawyers are excited at the prospect, I however am not, of the Supreme Court moving even closer to the status of a 9-person constitutional convention in continuous session.

Constitutions have explicit and implicit rules, both of which must be adhered to if the political system is not to become dysfunctional. Implicitly, the framers expected the judicial branch to adhere to concepts of jurisdiction, precedent and sovereignty when engaging in *interpretation* of the law. Introducing the alien courts into the mix upsets the implicit limitations and careful constitutional checks on the judiciary.

Bad ideas have worse consequences.

posted by: mark safranski on 06.30.04 at 10:40 AM [permalink]

Well, if Scottish law is good enough for Arlen Specter, why ain't it good enough for Judge Posner?


posted by: Barry Posner (no relative) on 06.30.04 at 10:40 AM [permalink]

Sorry. . .no reference to India in Ginsburg's concurrence in Grutter. But she does mention two international treaties. She seems to do so in a way that fall within Posner's permitted realm of non-authoritative references, but that's not going to satisfy critics of the decision, primarily because they don't like the result. So I think that Posner's advice is not going to help the Court on the legitimacy front all that much.

posted by: Brett on 06.30.04 at 10:40 AM [permalink]

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