September 14, 2005

"Looking at foreign law for support is like looking out over a crowd and picking out your friends."

I TiVo-blogged the Roberts hearings (and will do the same today, starting in midafternoon after my trip to the oral surgeon), but I missed a few parts of it due to C-Span's cutting away sometimes. I'm looking at the transcript now and seeing that Roberts gave a nice, crisp answer rejecting the use of the decisions of foreign courts in the interpretation of the U.S. Constitution:
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. And yet he's playing a role in shaping the law that binds the people in this country. I think that's a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution. And I think that's a misuse of precedent, not a correct use of precedent.
Well put. How would Justice Breyer answer that? I think the defense of using foreign law is that you cite it for its persuasive power, not because you regard it as binding authority. So it's not different from quoting a passage from Shakespeare or a philosopher. Thus, the fact that you're "picking out your friends" isn't a problem. And a bonus is — as Breyer has said — that the foreign judges whose opinions are cited — and cited because they are good — gain status in their own countries by virtue of the citation in a United States Supreme Court opinion. That may help the development of democratic values, individual rights, and the rule of law in those countries. Why shouldn't the Supreme Court provide that encouragement? It's not as if judges rigidly follow a method of eliminating all extraneous material from their opinions. As long as they don't slip into the problem of imagining the opinions of foreign courts to be authoritative, why is it wrong?

23 comments:

Nick said...

And a bonus is — as Breyer has said — that the foreign judges whose opinions are cited — and cited because they are good — gain status in their own countries by virtue of the citation in a United States Supreme Court opinion. That may help the development of democratic values, individual rights, and the rule of law in those countries. Why shouldn't the Supreme Court provide that encouragement?

Put simply... because its not the job of the Supreme Court to do that. If they want to provide that encouragement... let them do it during their occasional speaking tours and interviews that they do... not from the bench.

Out of Step in Kfar Saba said...

I disagree with Breyer's comment. I live in Israel and citing an Israeli judge in a US Supreme Court opinion would only strengthen the court, not democracy. It would just add to the already arrogant attitude of the judges in democratic countries. We don't need that.

Menlo Bob said...

Robert's comments are well put and so blindingly obvious that it makes fools of selected members of the court.

Troy said...

Plus there might be a bit of a slippery slope problem. The more a foreign court is cited perhaps it becomes seen as a precedent -- a super duper precedent to quote that spectre Spector.

I agree the Court's job is to interpret what the Consititution says not spread and promote democracy -- that's an executive branch job.

Goesh said...

The notions of democracy apply only when there is at least an established premise of equality for and amongst the People. Good intentions and ideals flounder and fall without this foundation. The richness of cultural diversity lies in one person's good being another's evil, and in knowing that man-made Laws can never surmount this fundamental fact of nature. The planet struggles desperately with applying procedures and rules for commerce and profit, let alone attempting to address differences in morality and religion. The world-is-a-village concept is but a chapter from the Liberal book of fantasy. But don't it just make ya' feel all warm and fuzzy and gooey to think about it?

Simon said...

I think Justice Scalia said everything that needs saying about foreign law in rebuttal to Breyer at the American University debate, a video of which can be found on CSPAN's site. Scalia's remarks in that setting leave me with no further questions; the issue is settled in my mind. Foreign decisions have no place - none, zero - in American jurisprudence.

Allah said...

I think the defense of using foreign law is that you cite it for its persuasive power, not because you regard it as binding authority. So it's not different from quoting a passage from Shakespeare or a philosopher.

Those are two completely different types of persuasion. When you quote Shakespeare, chances are it's because the quotation more ably expresses a point you arrived at through your own independent analysis. It influences the rhetoric, not the reasoning. When the Court cites foreign law, it's just the opposite. They tend not to quote from foreign opinions at all (they didn't in Lawrence v. Texas or Atkins v. Virginia); what they do is cite it as evidence that other courts have confronted the issue and ruled a certain way. It's equivalent to when one federal circuit looks at opinions from other circuits who have already ruled on an issue. Those decisions aren't binding precedent, but they're precedents nonetheless. If you believe Breyer, then, it seems our Supreme Court is apparently part of some sort of "world circuit." Who knew?

It's worth revisiting O'Connor's and Breyer's comments on this subject. They sound more concerned with world opinion than the persuasive power of their opinions, no?

Ann Althouse said...

Allah: Good points. As I was writing the post before rushing out the door, I was thinking of the next paragraph I'd add if I'd had time. My last question hints at what I would say.

Richard Dolan said...

In asking what is wrong with citing foreign law for its persuasive authority (if any), you miss Roberts' main point -- as he said several times, his concern is the need to constrain the discretion of judges, particularly in applying the generalities of the constitution.

I doubt very much, for example, if anyone would be much concerned with a court's use of foreign law -- say, some EU application of its version of antitrust law or administrative regulations in an environmental context -- to point out similarities or draw a contrast with similar provisions of American law. But it is a different matter when, to take a recent instance, foreign law is cited in the course of applying the Eight Amendment's "cruel and unusal punishment" clause. In the latter example, the Court has sometimes invoked an "evolving standards of decency" theme to impose policy choices other than those selected by the legislatures (state or federal).

In the latter category of cases, where the imperative (at least for a judge of Roberts' views) is to avoid the anti-democratic use of judicial power to impose a judge's personal views on the country, great mischief can result from the invocation of irrelevant "persuasive authority," be it foreign law, Shakespeare or anything else.

In those cases, the fundamental issue is whether the legislature's judgment on some particular policy should be displaced in favor of a view that has not (yet at least) garnered sufficient support to prevail in the democratically elected branches of government. Taking Roberts at his word, his concern is that the invocation of foreign law in such cases is merely a cloak for the judge's imposition of his own value preferences. While I haven't gone back to reread last Term's opinions, as I recall Scalia's dissent in one of the main Eighth Amendment cases, he made basically the same point.

To be sure, in the end this issue ultimately reduces to a concern about the judge's intent and purpose in invoking persuasive authority of any sort in cases where there is obvious room for a judge to encroach on legislative prerogatives. I tend to agree with the point implied by Roberts' comments, to the effect that the use of foreign law (or Shakespeare or one's favorite philosopher) in this context is just a cloak for that sort of activity -- i.e, an effort to sell, in a political way, the judge's imposition of his policy choice in lieu of the legislature's, particularly to the media, law school academics, and the political "talking" class in general. Those are the groups who, like an activist judge, are inclined to think that they know better than legislatures what a proper policy choice is in any given area, and who are more than willing to see their own policy choices imposed on society at large by judicial fiat. As I suspect you know from personal experience, the typical law school faculty is far to the left of the American electorate on most issues, and it is equally clear that the same is true for about 90% of the writes for the MSM. Should judges really be playing to that audience to help them sell the judge's imposition of his own policy choices in that way? Roberts does not expressly give his views, but the implication from his comments is decidedly in the negative. I tend to agree.

iocaste said...

Building on Allah's point -- they have been treated as binding, in a way. In Roper, the relevance of foreign law was to find the general consensus of what constitutes cruelty. The Eighth Amendment interpretation hinged on a finding of consensus. Thus, wasn't the foreign law, in some sense, binding?

Sloanasaurus said...

I think foreign law can be a source for dealing with issues that are new. For example, using arguments made in foreign courts on applying contract rights to the internet or on whether certain patent rights should apply to software, etc...

However, citing foreign law to decide things such as cultural matters is a very dangerous practice. The court should avoid citing the morality of a foreign land to argue for what morality should be here. If the Court starts doing this, what the Court is really doing is stepping on the wisdom of the people who should be able to decide for themselves through their elected officals what is moral.

Allah said...

As long as they don't slip into the problem of imagining the opinions of foreign courts to be authoritative, why is it wrong?

This cuts to the heart of it. Most of us wouldn't object to the Court citing Shakespeare or Aristotle because we accept them as intellectually (and sometimes morally) authoritative. It lends gravitas to an opinion to know that, say, Plato would have agreed with the reasoning. That's why argumentum ad verecundium works.

Conservatives bristle when the Court cites foreign law -- particularly in the course of overruling one of its own precedents -- because it imputes the same kind of gravitas to institutions that aren't remotely as authoritative. What do I care what Europeans think about capital punishment? Are their laws intellectually or morally superior to ours? If so, why? And if so, why bother citing the decisions of their courts? Just adopt the underlying reasoning as your own and make the case yourself?

The clear implication, at least in recent cases where foreign law is cited, is that European justice is more "progressive" than, and therefore superior to, our own. If that's the case, let Congress re-write the U.S. Code to reflect it. I don't think it is, and I certainly don't think it's Stephen Breyer's prerogative to make that decision.

Jack Roy said...

Ach. More confusion.

Foreign decisions have no place - none, zero - in American jurisprudence.

I wonder if people who express such reflexive legal nativism would object to the imporation of different concepts of contract law from the Austrians, or tort law from the Germans, or family law from canon law? Are we subverting the independence of the American bench by using such "binding" (such as they are) sources?

It also appears to be worth mentioning, as it seems the point may have been missed, but the objection that judges look out over a sea of foreign precedents and pick out only their friends is analytically incompatible with the fear that American judges are being bound by foreign precedents. You can worry about American judges only following foreign precedents they agree with, or you can worry about American judges following precedents irrespective of whether they agree with them, but you cannot worry about both at the same time.

To illustrate: While American judges might look to German courts to find disfavor with the death penalty, does anyone really think that those same judges would really give equal weight to Iranian precedents allowing public executions?

What's really going on when courts use international precedents is they're casting about for some external source of the moral judgments they've already come to. So rather than issue a bare opinion of the form: "No, you Texan barbarians, you can't execute the retarded!", they're simply affixing a pretextual justification that it is not only the court itself that is coming to this judgment, but the whole of mankind. A mere fiction, of course, but it is one that allows the courts to strike down inhumane practices without giving direct affront to the lower courts that had disagreed.

Coco said...

This is an interesting topic and some very well-thought out positions have been espoused here, but to me, its really just a side-show of the originalist versus living Constitution debate. I don't think either side will really convince the others - just like I doubt that Scalia or Breyer (or Kennedy) for that matter are going to convince each other they are right (or wrong). Thus, I'm not sure that Roberts' answers on the question really signal where he lies on that debate. As far as I can tell from what I've read, he's somewhere in between, but we won't really know until he's on the bench. I think that Scalia would disagree with any modern morality argument (regardless of its geographical point of origin), regardles of the source, becuase for him the real question is what the framers' believed.

Ann Althouse said...

Coco: I agree with you about the debate generally and have written about that on this blog (back at the time of the Scalia/Breyer debate), but I note that Roberts has not come out as an originalist.

Coco said...

"but I note that Roberts has not come out as an originalist."

I agree - that's what I was trying to say - he may well be, but if he is he's been very good about not tipping his hand. If you took him at his actual words during these hearings or even any implicit signals, I don't think he is...but we'll see.

My hunch is that he is not.

Ann Althouse said...

Coco, but maybe we should suspect that he really is an originalist, given his position on foreign law (but I don't think so).

Roy Lofquist said...

Dear Professor Althouse,

As a layman (i.e., one of the 99.7% of citizens who are not lawyers) I may be a bit naive and confused about the subtleties of the law, but my impression is that the mechanics of our judicial system entail the resolution of disputes between two parties by the application of the law by the court. Each side is entitled to present its side, presenting arguments which include both statute and precedent. This body of law is equally available to both sides. The skill of the attorneys is often judged by their depth of knowledge and their ability to coherently present arguments supporting their side.

If foreign law, which is outside the scope of most attorneys, is given some weight then the principle of rule of law is violated because the corpus of the law is unknown and unknowable.

Regards,
Roy

Roy Lofquist said...

Dear Professor Althouse,

As a layman (i.e., one of the 99.7% of citizens who are not lawyers) I may be a bit naive and confused about the subtleties of the law, but my impression is that the mechanics of our judicial system entail the resolution of disputes between two parties by the application of the law by the court. Each side is entitled to present its side, presenting arguments which include both statute and precedent. This body of law is equally available to both sides. The skill of the attorneys is often judged by their depth of knowledge and their ability to coherently present arguments supporting their side.

If foreign law, which is outside the scope of most attorneys, is given some weight then the principle of rule of law is violated because the corpus of the law is unknown and unknowable.

Regards,
Roy

Simon said...

Ann,
but maybe we should suspect that he really is an originalist, given his position on foreign law (but I don't think so).

He has specifically and explicitly bought into substantive due process. How does that square against originalism, of any variety?

I'm going to bite on foreign law to the extent that I have comments I wrote on the matter to a U.K. newspaper that complained about American legal insularity, and I apologize that a) they're a little dumbed down for the intended audience, and b) they largely paraphrase what Scalia has already said.

---

[T]he implied opprobrium in this text on the unwillingness of most American Judges to allow international law to bleed into constitutional interpretation, is predicated on the assumption that the use of foreign materials is relevant to the task of an American Judge. This predicate is highly dubious.

There are two great schools of thought regarding the American constitution and how it should be interpreted. One, subscribed to on the Supreme Court currently by Justices Scalia and Thomas, holds that in order for a constitution that is ratified by the people, and by its own terms can only be amended by their elected representatives (which Judges are not, and should not be), must be given a fair reading in light of what the document says, and what that text meant when it was adopted.

The other, "the living constitution", subscribed to by most of the other Justices, holds that in order for the constitution to remain meaningful to society, its provisions must be interpreted in light of "the evolving standards of decency of American society", meaning in effect that the Constitution has no fixed meaning, and that Chief Justice Marshall was wrong when he wrote in Marbury v. Madison that "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written", and correct when he added that "[t]he distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed."

In the interests of full disclosure, I am a subscriber to the former theory. But what's important is that, within either paradigm, it is hard to see what value foreign precedent might be. If you're an originalist, you're looking for what a statute or the constitution meant when they were adopted. Obviously, if you have that theory, subsequent foreign legal precedent is irrelevant, because it can't change the meaning of the text. But, even if you buy into the other school of thought, even if you're a living constitutionalist, what relevance would foreign law have to your view of your task? If you're looking to give the text the best meaning it could have, in light of the contemporary standards of decency in American society, what are you looking for? The standards of decency of AMERICAN society. What does looking to foreign court decisions tell you about the contemporary standards of decency in American society? Nothing.

So if you're an originalist, foreign law is irrelevant. If you're an honest living constitutionalist, foreign law is irrelevant. The only way it's useful, the only context in which it's relevant, is if you have a third approach to interpreting the law. And that approach, I fear, is exactly what the living constitution tends to be in practise: judicial paternalism. It is the approach that calls on a Judge to determine, "what is the best answer to this case? What do I think is the fairest outcome in this case? What is the best for society? And how can I remove the legal and precedential barriers to the imposition of that outcome?" Having asked those questions, the paternalist needs to write an opinion that looks like the product of a judge; and thus, they turn to doctrines like substantive due process, and increasingly, they turn to foreign law. They are, in the words of Clinton administration Solicitor-General Seth Waxman, "attracted by any notion, or principle, the logic of which carries us to a result we think is just."

And so it is. In the context of the modern court - and it is clearly on display in Roper v. Simmons and Lawrence v. Texas, for example - foreign sources are cited selectively to support the result desired by the author (in both examples above, Justice Kennedy; although Justices Breyer and Ginsburg most often fall back on foreign sources). In Printz, for example, Justice Breyer cited the example of Switzerland to show how Switzerland had approached the Federal system. This might be very valid if he was writing for a Swiss court, but America is not Switzerland! Maybe their system is better, I don't know - but the point is, their system isn't ours! Justice Breyer claims that "we might learn something" if we look at foreign precedent. That's true, as far as it goes; we might also learn something from taking a class in automobile engine maintenance, a PBS special on the chemical composition of Jupiter, a class in foreign & comparative law, or an hour watching Music TeleVision (strapped, presumably into a contraption similar to that used in A Clockwork Orange), but while these endeavors might all be very enlightening on some level, I would find discussion of those subjects somewhat out of place in a judicial opinion on the meaning of the constitution of the United States. "Interesting" is no more the criterion for "relevant" than "people feel passionately about this" is the criterion for "is this constitutional?"

The Constitution has a mechanism for changing its meaning; it is located in Article V, and it does not include the passing of laws by the legislature, or the precedents of courts American or otherwise. The Constitution also has a mechanism for importing foreign law into American law: the treaty process. Neither of these are to be found within the power of the federal courts; not only is the use of foreign materials irrelevant, but it is also borderline unconstitutional.

For a Judge in a common law jurisdiction, this might be a good idea; but in a system governed by a written instrument, it is indefensible. It is easy, to the point of lazy, to casually opine that the American legal system is insular. But what is missing, and what cannot be missing for the argument to be rescued from the depths of meaningless rhetoric, is a coherent explanation as to why foreign precedent should be of any relevance to the U.S. system.

Chris said...

The thing about Roper and Lawrence, though, is that they don't give us any of
the reasoning that led to the decisions they cite.

Here's what Lawrence says:

"Of even more importance, almost five years before Bowers was decided the
European Court of Human Rights considered a case with parallels to Bowers and
to today's case. An adult male resident in Northern Ireland alleged he was a
practicing homosexual who desired to engage in consensual homosexual conduct.
The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ ;52."

We don't know what the provision was from the European Convention or the court's reasoning. Is that case a good guide to the interpretation of the due process clause? It depends on the wording of the provision involved in the other case, which the Court doesn't tell us.

Roper, too, merely announces the fact that other countries have abolished the juvenile death penalty, but doesn't tell us why. There isn't any reasoning with which to agree or disagree.

I agree that foreign courts can be as persuasive as law review articles, but we need to know the reasoning, not just the conclusion. I'd say the same about legislative history, by the way. We should give them Skidmore deference. Foreign law and legislative history, "while not controlling upon [interpreters of the U.S. Constitution and statutes] by reason of their authority, do constitute a body of experience and informed judgment to which [interpreters] may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control."

EddieP said...

Here's my learned redneck observation. Invoking foreign law precedents in Supreme Court cases don't pass the smell test!

We borrowed all the foreign law we wanted or needed when we wrote our laws based on the Common Law of England. If the Congress and the people want to amend the Constitution or our laws based on foreign precedent, there is a plainly laid out procedure. We sure don't need SCOTUS applying it for us.

Beyond that "It don't smell right!"

John A said...

Well, foreign law should not be regarded as precedent. Nor should a judge allow foreign practice to determine his rulings under our laws.
But influence, maybe. I do not expect judges to be insulated from the outside world, be it the city in which they live or an interesting case 11000 milles off. I would thinj they might find it interesting that Mark Twain used fingerprinting to solve a (fictional) mystery long before law enforcement had widely accepted it. Or that Bertillon's attempt to classify "criminal types", while failed as such, is still in (modified) use as a standard way of describing people. Or that England still has a form of debtor's prison (if you can't pay council [public housing] dues [rent] you may be imprisoned until someone does) which has caused concern about elderly pensioners.