Last Saturday I wrote about my… “disappointment” at Justice Ginsburg’s dismissive attitude toward using the US Constitution as a model for others. Thanks to a link from Jim Vicevich, I was reminded of one of Madame Justice’s earlier moments of glory, from 2009: her inability to understand why anyone would have a problem with an American judge using foreign law to shape US judicial decisions:
“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Justice Ginsburg said in her comments on Friday.
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.
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.”
She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.
“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.”
American hostility to the consideration of foreign law, she said, “is a passing phase.” She predicted that “we will go back to where we were in the early 19th century when there was no question that it was appropriate to refer to decisions of other courts.”
I’m a helpful, caring sort of guy and I have a great deal of sympathy for confused little old ladies, so let’s see if we can help Justice Ginsburg out, shall we?
First, I suggest she reread the article, with special emphasis on the quote from her colleague, Chief Justice Roberts:
“If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge,” Chief Justice Roberts said at his confirmation hearing. “And yet he’s playing a role in shaping the law that binds the people in this country.”
And there’s the key: democratic accountability. While we rightly shield federal judges from base politics and the need to run for office, we can still say with reason that they are accountable to the people because we elect those who appoint and confirm the judges. And, in the worst cases, they can be removed by the people’s representatives.
More directly, US judges rule on laws passed by American legislators who are democratically accountable to the American people, and the US judge operates under rules established by precedent (common law) and legislation (statute and constitutional amendments). He is the heir to an evolving legal and political tradition stretching back over 1,000 years to the origins of trial-by-jury and the field of Runnymede, and coming forward through the development of elected parliaments, separation of powers, and judicial review to form a system that works because it has the legitimacy of the people.
None of that applies to the hypothetical German judge, who works within his own context and whose rulings carry none of that legitimacy here.
I would suggest to Madame Justice that, regardless of what law reviews she chooses to read (and I applaud her desire to broaden her horizons), it is not at all unreasonable or incomprehensible that she or any American judge should be expected to confine her judicial rulings to the law derived from that rich Anglo-American heritage and enacted with democratic legitimacy under the US Constitution.
If she wants to refer to the writings of Edward Coke, great! But a ruling of the French Constitutional Council? Non!
PS: A “passing phase?” Why does this sound like Justice Ginsburg is telling the rest of us (and her colleagues?) to “grow up?” Oh, wait. That’s because that’s exactly what she is doing, because that’s what progressives do: condescend. We’re just not enlightened enough and too busy clinging bitterly to our old, outdated Constitution to understand progressive, sophisticated jurisprudence.
PPS: And why should a US Justice care how often her court is cited relative to others? What matters is the Court’s legal influence within the United States, not being a finalist in some international judicial beauty contest.
PPPS: Though she did raise an interesting question. I wonder how often foreign law was cited in the Early Republic?
(Crossposted at Sister Toldjah)