slx
2005-06-21, 04:24
what's your opinion........?
By Tony Mauro Mon Jun 20, 6:59 AM ET
The rumors sweep through Washington, D.C., like summer storms. One day, Chief Justice
William Rehnquist is about to resign. The next day, not. The day after that, one or more justices will join him in leaving the bench. The truth is, no one can predict what will happen.
Rehnquist, who is fighting thyroid cancer, is keeping his plans to himself, if he has any. He has shown remarkable stamina and determination in keeping up with his work at the court, and it would surprise no one if he defied all the experts and stayed on for months or longer.
So here is a safer prediction: When and if a new justice is nominated, he or she will be grilled about an issue you have probably not heard much about: whether it is proper for the Supreme Court to use international or foreign law as a resource in deciding U.S. cases.
Before your eyes glaze over or wander to a nearby cartoon, let me add: This issue is a big deal and has already played a significant role in the court's decision-making in recent years.
In landmark rulings upholding affirmative action, supporting gay rights and, most recently, striking down the death penalty for juvenile offenders, justices have invoked the practices of foreign nations and the rulings of international courts to support their conclusions. In the March 1 ruling Roper v. Simmons, Justice
Anthony Kennedy took note of the "stark reality" that the United States was the only nation in the world that still sanctioned the execution of those who were younger than 18 when they committed their crimes.
That fact was far from the only reason Kennedy and four other justices found such executions unconstitutional. But to hear conservatives' violent reaction to the decision, you would think that it was the only justification, and that Kennedy had suddenly ceded the authority of the Supreme Court to the laws of Klingon, or Mars.
The uproar
In a tone of incredulity, House Majority Leader Tom DeLay said in April, "We've got Justice Kennedy writing decisions based upon international law - not the Constitution of the United States." Congressional Republicans have introduced a resolution to disapprove of the practice. Justice
Antonin Scalia, the leading opponent of the trend, said recently that the framers of the Constitution "would be appalled" to see the Supreme Court cite the laws of nations they were trying to distance themselves from. As the issue gains traction, the chances improve that Scalia or
Clarence Thomas, who also opposes using foreign sources, will be nominated as chief justice. Kennedy can kiss his chances goodbye.
Why all the fuss over a seemingly technical point of law? This debate is driven by outcomes. In each of the recent cases in which invoking foreign law has sparked controversy, the decisions have been progressive or liberal. But a lot of international law is not so progressive. On issues ranging from freedom of speech to abortion, much of the world is far to the right of U.S. law. It will be interesting to see whether conservatives get so upset when cases come along in which international doctrines would help their side.
But at a loftier plane, this is an important debate about the court's role. Conservatives who believe in a limited role for judges say the Supreme Court should stick to its knitting, namely interpreting the U.S. Constitution as written, and should ignore current fads here or abroad. But the counter-argument is strong. If globalization has flattened the world in terms of the economy and culture, isn't it time that our legal system also look beyond our borders? Are we so arrogant that we think we have nothing to learn from judges and lawmakers around the world who have faced the same issues we face?
Kennedy's progression
I remember covering a meeting of the American Bar Association in London in 2000 where Kennedy was asked by a British barrister during a panel discussion why the Supreme Court so rarely cites foreign court rulings, when those courts so often cite ours. Foreign rulings were too remote and unknown to American judges to cite reliably, Kennedy replied - an answer that nearly got him hooted off the stage.
Kennedy has come a long way since then, and other justices have too. They all have come to realize that the American legal system is no longer viewed as the only beacon of justice in the world. They do have something to learn from the courts and laws of other nations.
As is often the case, Justice
Sandra Day O'Connor has traveled a sensible middle road on the issue. She recently said the controversy was "much ado about nothing." Sometimes it is appropriate to look to foreign law, she said, and sometimes not - but never should it be the deciding factor when the job of the Supreme Court is to interpret the U.S. Constitution.
But in today's world, ignoring it altogether is not an option, she has said. In a speech before the American Society of International Law in 2002, O'Connor put it this way: "Because of the scope of the problems that we face, understanding international law is no longer just a legal specialty. It is becoming a duty."
By Tony Mauro Mon Jun 20, 6:59 AM ET
The rumors sweep through Washington, D.C., like summer storms. One day, Chief Justice
William Rehnquist is about to resign. The next day, not. The day after that, one or more justices will join him in leaving the bench. The truth is, no one can predict what will happen.
Rehnquist, who is fighting thyroid cancer, is keeping his plans to himself, if he has any. He has shown remarkable stamina and determination in keeping up with his work at the court, and it would surprise no one if he defied all the experts and stayed on for months or longer.
So here is a safer prediction: When and if a new justice is nominated, he or she will be grilled about an issue you have probably not heard much about: whether it is proper for the Supreme Court to use international or foreign law as a resource in deciding U.S. cases.
Before your eyes glaze over or wander to a nearby cartoon, let me add: This issue is a big deal and has already played a significant role in the court's decision-making in recent years.
In landmark rulings upholding affirmative action, supporting gay rights and, most recently, striking down the death penalty for juvenile offenders, justices have invoked the practices of foreign nations and the rulings of international courts to support their conclusions. In the March 1 ruling Roper v. Simmons, Justice
Anthony Kennedy took note of the "stark reality" that the United States was the only nation in the world that still sanctioned the execution of those who were younger than 18 when they committed their crimes.
That fact was far from the only reason Kennedy and four other justices found such executions unconstitutional. But to hear conservatives' violent reaction to the decision, you would think that it was the only justification, and that Kennedy had suddenly ceded the authority of the Supreme Court to the laws of Klingon, or Mars.
The uproar
In a tone of incredulity, House Majority Leader Tom DeLay said in April, "We've got Justice Kennedy writing decisions based upon international law - not the Constitution of the United States." Congressional Republicans have introduced a resolution to disapprove of the practice. Justice
Antonin Scalia, the leading opponent of the trend, said recently that the framers of the Constitution "would be appalled" to see the Supreme Court cite the laws of nations they were trying to distance themselves from. As the issue gains traction, the chances improve that Scalia or
Clarence Thomas, who also opposes using foreign sources, will be nominated as chief justice. Kennedy can kiss his chances goodbye.
Why all the fuss over a seemingly technical point of law? This debate is driven by outcomes. In each of the recent cases in which invoking foreign law has sparked controversy, the decisions have been progressive or liberal. But a lot of international law is not so progressive. On issues ranging from freedom of speech to abortion, much of the world is far to the right of U.S. law. It will be interesting to see whether conservatives get so upset when cases come along in which international doctrines would help their side.
But at a loftier plane, this is an important debate about the court's role. Conservatives who believe in a limited role for judges say the Supreme Court should stick to its knitting, namely interpreting the U.S. Constitution as written, and should ignore current fads here or abroad. But the counter-argument is strong. If globalization has flattened the world in terms of the economy and culture, isn't it time that our legal system also look beyond our borders? Are we so arrogant that we think we have nothing to learn from judges and lawmakers around the world who have faced the same issues we face?
Kennedy's progression
I remember covering a meeting of the American Bar Association in London in 2000 where Kennedy was asked by a British barrister during a panel discussion why the Supreme Court so rarely cites foreign court rulings, when those courts so often cite ours. Foreign rulings were too remote and unknown to American judges to cite reliably, Kennedy replied - an answer that nearly got him hooted off the stage.
Kennedy has come a long way since then, and other justices have too. They all have come to realize that the American legal system is no longer viewed as the only beacon of justice in the world. They do have something to learn from the courts and laws of other nations.
As is often the case, Justice
Sandra Day O'Connor has traveled a sensible middle road on the issue. She recently said the controversy was "much ado about nothing." Sometimes it is appropriate to look to foreign law, she said, and sometimes not - but never should it be the deciding factor when the job of the Supreme Court is to interpret the U.S. Constitution.
But in today's world, ignoring it altogether is not an option, she has said. In a speech before the American Society of International Law in 2002, O'Connor put it this way: "Because of the scope of the problems that we face, understanding international law is no longer just a legal specialty. It is becoming a duty."