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View Full Version : U.S. Supreme Court vs. The World

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."

2005-06-21, 05:10
I don't think that it is such a bad idea in areas where we have no case law to refer to but I also agree that it shouldn't be the only thing that a decision is based on as we are our own country and do have our own constitution. (how is that for a run-on sentence? Heh!) For example it would be very bad for them to do this if it totally went against any of our constitutional rights. However, if our constitution supports it and we have no precedent I don't think it hurts to see how another nation has handled a similar issue.

Like if you managed a department at work and an employee did something bad and you didn't know what to do about it/how to handle the situation asking another department manager their idea would be ok as long as the solution was supported by rules and regulation set forth by the employee hand book.

2005-06-21, 08:25
I dont' understand if the article is reffering to Internatinal Law, OR Judicial Systems of International States?

I've just consumed an entire bottle of wine, but here i go anyway lol

I don't believe the judicial policies of international states should directly influence a judicial proceeding in another state. However, it is important to understand and asess policies and systems of international states. The influence of this however, should not be presented in courts to aid any individual case, but should be used to change and better internal policies of a state, and thus, influence court proceedings in a more accepted manner.

The law of international states is irrelevent when proceeding with a case outside of that states borders. However, I understand that many times states function and co-operate together on any individual case, but I think that tends to be more politically influenced.

Because a sovreign state has its own judicial system, constitution and policies, i beieve justice would not be served in a particular state if international policies influenced the case, through unofficial means.

Globalisation may well be connecting (and manipulating) states creating change in economic & political policies, but the sovreignity of a state is more closely tied with its constitution and law, which is less accessable by other states than say, economic policies which are constantly being updated as a result of international influence, not only for economic reasons, but also for the sake of international relations.

2005-06-21, 10:18
When judges reach their decisions they use the law as their guidance. But also they must make decisions based on what they think is just. Justice is supposedly universal, like truth, and therefore it would be good to look at all cases throughout the world as a point of reference to decide what is just. Judges tend to be scholarly in that they mask the existence of their opinions with the opinions of others. When they make decisions they would rather give credit to some precedent than take responsibility for what they believe in. Such a scholarly approach is to me deceptive and cowardly because it creates the appearance that one has no opinions of his own and one has found a universal truth. But one's scholarly decisions could vary based on the references and precedents one chooses to use, so it's not really objective. I think the difference between judges and philosophers is that judges tend to be scholarly when seeking "justice", while philosophers tend to seek the "truth" without needing to attribute their beliefs to other people.

2005-06-22, 02:39

Me thinks that just lookin' at their crotch, deciding what is fun/best for it, is the only input acknowledged.

2005-06-22, 08:23
hey slx, what's your opinion!?!? :D