Everyone's Got An Opinion

Justice Ginsburg recently spoke at Ohio State University (that was her first mistake). A big topic was citing foreign law in Supreme Court cases. There are certainly solid arguments for doing this, but I don't think Justice Ginsburg makes them.

Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she asked.

Well, perhaps because the law review article deals with American law, while a foreign judge doesn't. If you believe in stare decisis, this is a pretty important distinction. Imagine if she were deciding a tax case and figured a learned discourse on Japanese tax law was just as relevant as one about the American tax code.

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”

There's a pretty strong argument that considering whether a decision will help or hurt the international influence of the Supreme Court should not even receive the slightest consideration. If it's thought of at all, certainly it should be pretty low on the list of what matters.

Or does Ginsburg believe in handing out justice with an eye to what others think of her. If she does, how does she feel about deciding cases that go against what the public wishes? (“What happened in Europe was the Holocaust,” she said, “and people came to see that popularly elected representatives could not always be trusted to preserve the system’s most basic values.” So there you have it--pay attention to the wisdom of foreign judges or you'll lose their respect, but don't worry about going against the American people since it's the right thing to do.)

In her remarks, Justice Ginsburg discussed a decision by the Israeli Supreme Court concerning the use of torture to obtain information from people suspected of terrorism.

“The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” she said, describing the question presented in the case. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.’ ”

Foreign judges, who work from a different tradition with different laws, should not especially impress us with anything beyond their expertise in those legal traditions--as for general philosophizing on morality, I don't see them as having any special understanding which we need to particularly respect. I have no doubt if you cast around it's easy enough to find wisdom that agrees with your sense of morality. What'll impress me is when I find Justice Ginsburg changing her vote because she read something from a foreign judge who disagrees with her politics.

Until then, I think it's best to stick to American law. There's still enough wiggle room there to get to the result you want.