The United States Supreme Court is charged with judging the laws of the United States through its interpretation of the United States Constitution. Therefore, any law of any foreign country is completely irrelevant to the process. And there is no such thing as "international law" in any case. So why is anything Justice Scalia says even the least bit controversial?
Of those he feels lean too heavily on foreign law, Scalia asked rhetorically, what authority can be cited when a court that says constitutional law which "used to say one thing now says something else?"
This is just simple common sense, isn't it?
Comments
I see this gripe about international law and the Supreme Court come up from time to time. It's always seemed like a peculiar thing to get worked up about, but I've never really paused long enough to try to figure out what, exactly, had people's panties in a bunch.
Certainly I would agree that foreign law is not binding on American courts. It doesn't set precedent, any more than the decision of an Illinois Court sets precedent for an Indiana Court. Nevertheless, I would feel comfortable citing an Illinois case to an Indiana court as persuasive, rather than binding, authority.
As persuasive authority, I see nothing wrong with citing to foreign law. All it says is "other jurisdictions have wrestled with this same problem, here's what they decided, and here's why; I think you ought to decide similarly and for the same reasons." You're not saying, "this other jurisdiction decided this way so you have to too."
What am I missing, and why is this a big deal?
But in some cases, it seems to some of us that justices are coming very close to saying "this other jurisdiction decided this way so you have to too," seeking to bind us to the "world community" instead of our own legal system.
In 2003's Lawrence v. Texas decision, which struck down that state
This is a big deal because the words and intent of the Constitution cannot be altered except by another constitutional convention or a second revolution.
Scalia is suggesting that any benefits derived from instructing our courts to give consideration to "how they do it over there" are cosmologically outweighed by the certainty of widespread abuse by elements who would love to be able to sell some insult to the Constitution just this way, before anybody notices that popularity, PR and sentiment do not trump the Bill of Rights.
The other difficulty is the types of groups, foreign and domestic, that usually think this sort of thing is a great idea.