At NRO, Ed Whelan comments (unfavorably) on Justice Breyer’s recent Wall Street Journal article and forthcoming book (The Court and the World: American Law and the New Global Realities [Knopf, forthcoming September 2015]): Breyer’s Red Herring on Foreign Law. Breyer generally defends the Court’s use of foreign law in its decisions. On foreign law and the Constitution, Whelan responds:
But the “international” part of the Supreme Court’s work includes many things that are fine and some things that aren’t. The “current … debate,” which is as much legal as “political,” isn’t about whether American courts “should refer in their opinions to decisions of foreign courts.” It’s instead about whether it’s proper for justices to rely on such decisions to determine the meaning of American constitutional provisions.
Further, the selective engagement in that unsound practice by Breyer and company plainly does “reflect” their “ideologies.” As Justice Scalia points out in his devastating dissent in Roper v. Simmons (2005) …, the justices who invoke foreign law when it helps them haven’t done so when it doesn’t—“on matters ranging from the exclusionary rule, to church-state relations, to abortion.” Most recently (as I discussed in point 5 of this post), Breyer and the other justices in the majority in Obergefell—the very five who defend the misuse of foreign law—made no inquiry into foreign law. Why not? Because it would have cut against them: Foreign jurisdictions overwhelmingly reject SSM, and just last year even the European Court of Human Rights acknowledged that “it cannot be said that there exists any European consensus on allowing same-sex marriage.” In short, Breyer and company are entirely opportunistic and results-oriented in their resort to foreign law to resolve the meaning of provisions of the Constitution.
In fact, Justice Breyer’s critics rarely worry that judges who cite foreign law will do so too rigidly. Their concern is that such judges, lacking an anchor in the Constitution’s original meaning, will invoke foreign law in an ad hoc way, whenever it is consistent with their own views. In any event, the critics argue, international law is irrelevant to the court’s task of interpreting the Constitution’s text. As Justice Antonin Scalia observed in a 2006 speech on “outsourcing American law,” foreign experience may be helpful in writing a constitution, but the court’s job is to interpret the words of the Constitution we already have, as they were originally understood.
On the matter of foreign law and the Constitution, I agree with Ed Whelan that this approach has been thoroughly discredited by Obergefell. If one is going to say (as Justice Kennedy’s majority opinion essentially did) that same-sex marriage is an inherent part of human dignity as a matter of universal principles, and if you believe that the views of foreign courts are relevant to U.S. constitutional meaning, it seems necessary to at least acknowledge the contrary views of the European Court of Human Rights (which has declined to impose same-sex marriage while generally showing sympathy for sexual orientation rights). Acknowledging does not necessarily mean following; the South African Supreme Court, which has a constitutional mandate to consider the views of other jurisdictions, often acknowledges them without following them. But Obergefell did not even acknowledge. It’s hard to see this as other than an admission that the Court will discuss foreign sources when they support a conclusion reached for other reasons, and not otherwise. And if that’s the case, a lot of happy talk about a global judicial dialogue on constitutional rights needs to be reconsidered.