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.