Light Brings Salt
Volume 3, Issue 18 May 1, 2005
Dedicated to the Systematic Exposition of the Word of God
But What Does
Dr. Al Mohler
Observers
of the U.S. Supreme Court have noted a disturbing pattern in recent court
decisions: Some justices are citing foreign court decisions in framing their
own interpretation of the U.S. Constitution. This amounts to an internationalizing
of the United States Constitution and raises disturbing and difficult questions
about the future of the U.S. Supreme Court and its stewardship of our nation's
most fundamental document. Writing just last year, former judge Robert H. Bork
issued an eloquent warning that
The
question of foreign court decisions in the making of American law and in the
work of the Supreme Court has spawned a lively debate in law journals and legal
circles. Nevertheless, all that was eclipsed on January 13
when two sitting justices of the U.S. Supreme Court debated the issue before an
assembly of lawyers and law students at the
In a
fascinating and revealing discussion, Justices Antonin Scalia and Stephen
Breyer defended their own approach to constitutional interpretation and
provided much-needed insights into how the justices of the Supreme Court do
their work and debate crucial issues.
Public
engagements between sitting Supreme Court justices are exceedingly rare. The
Supreme Court has traditionally had something of an obsession with guarding its
secrecy. Writing over 25 years ago, authors Bob Woodward and Scott Armstrong
noted the Court's deliberate effort to hide its decision making process from
public view. "For . . . nearly two hundred years, the Court has made its
decisions in absolute secrecy, handing down its judgments in formal written
opinions. Only these opinions, final and unreviewable, are published. No American
institution has so completely controlled the way it is viewed by the public.
The Court's deliberative process--its internal debates, the tentative positions
taken by the Justices, the preliminary votes, the various drafts of written
opinions, the negotiations, confrontations, and compromises--is hidden from
public view."
Few
citizens have actually visited the Court in order to observe the justices
engaged in oral arguments. No television cameras are present, and the
proceedings are off-limits to recording devices. So far as the public is
concerned, virtually all knowledge about the Court's operations comes from
reporters covering oral arguments.
But
the oral arguments are only the public face of the court. The actual
decision-making between the nine justices takes place in Wednesday conference
sessions that are absolutely off-limits to anyone outside the justices
themselves. As Chief Justice William H. Rehnquist has commented, "To
anyone familiar with the decision-making process in other governmental institutions,
the most striking thing about our Court's conference is that only the nine
justices are present. There are no law clerks, no secretaries, no staff assistants, no outside personnel of any kind."
With
all that as background, the Scalia-Breyer debate takes on increased importance.
[Note that the debate is referred to as a
"Scalia-Breyer" discussion, putting Scalia ahead of Breyer, rather
than placing the names in alphabetical order. This is because the
Court's regard for seniority is almost as obsessive as its concern for
secrecy.]
Setting
the terms of the public discussion, Justice Scalia delivered the first salvo.
Scalia,
who argues that foreign court decisions should have absolutely no influence in
the interpretation of the U.S. Constitution, bases his argument on the fact that
the Court's responsibility is to interpret the U.S. Constitution as the framers
intended--not to go shopping for legal arguments that would support a justice's
own interpretation, whether from domestic or foreign authorities.
"Now,
my theory of what I do when I interpret the American Constitution is I try to
understand what it meant, what [it] was understood by the society to mean when
it was adopted. And I don't think it changes since then." He continued:
"Now, obviously if you have that philosophy--which, by the way, used to be
the orthodoxy until about 60 years ago--every judge would tell you that's what
we do. If you have that philosophy, obviously foreign law is irrelevant with
one exception: Old English law, because phrases like 'due process,' the 'right
of confrontation' and things of that sort were all taken from English law. So
the reality is I use foreign law more than anybody on the Court. But it's all
Old English law."
In
keeping with his originalist understanding of the Constitution and its proper
interpretation, Scalia argues that the decisions of contemporary foreign courts
should have absolutely no bearing on the interpretation of
As
Justice Scalia sees it, foreign law might be a topic of individual interest for
a jurist, but should be acknowledged as absolutely irrelevant to what an
American judge does when he interprets the Constitution.
Justice
Breyer argued that American law "emerges" as the society matures and
as the legal process is negotiated between judges, law professors, law
students, and other legal scholars. According to Breyer, this process of
lawmaking--with a particular view to the work of judges--is "a
conversation." When deciding cases,
judges should involve themselves in this conversation, Breyer argued, for out
of this conversation emerges the law of the land.
With
respect to the decisions of foreign courts, Breyer insisted that "foreign
law doesn't bind us," but can be instructive. Judges are human beings,
Breyer insisted, who, along with other human beings, are dealing with
"certain texts, texts that more and more protect basic human rights."
Since
so many of these human rights issues are international in scope and
application, Breyer argued, American judges should take developments and
arguments emerging from foreign courts into account.
Furthermore,
Breyer argued that since foreign courts often cite the U.S. Supreme Court,
"why don't we cite them occasionally?"
Controversy
over the citation of foreign court decisions in the work of the U.S. Supreme
Court came to a focal point in the Court's 2003 decision,
In
answer to a question, Breyer stated his case clearly. "So what I'm saying
is that this world we live in is a world where I think it's out of date for
people to teach about foreign law in a course called 'Foreign Law.' I think
it's in date to teach in contract law or in court law, because those are the
cases we're getting. And that reflects the truth about the world, which is that
of course business is international; law is more and more international; and of
course, human rights, too, are more and more international."
The
Scalia-Breyer debate revealed where the two justices disagree on the basic task
of a judge, with Scalia arguing that the judge's responsibility is to interpret
the Constitution as its framers would have intended, and Breyer arguing for an
evolutionary concept of the law with the judge trying to come to the best
understanding of the needs of the society in the shape of the law.
At the
same time, other arguments asserted by the two justices offer considerable
illumination. Scalia accused Breyer and other judges who argue for the citation
of foreign court decisions of being highly selective. In dealing with cases
related to controversial issues such as abortion, homosexuality, and civil
rights, more liberal judges are quick to cite decisions handed down by European
courts, but Scalia noted that they stay far away from decisions handed down by
courts in
Scalia
also pressed his point with relation to the selective use of foreign decisions
by judges who cite one point without acknowledging other dimensions of these
cases that would be problematic. For example, Scalia acknowledged that
In the
most important segment of the discussion, Scalia attacked the idea that a judge
should look for "evolving standards of decency" in American society.
He parodied liberal judges who consider themselves to
be moral arbiters with the authority to determine what these "evolving
standards of decency" are and then interpret the Constitution in order to
meet these standards. "Do you think you're representative of American
society?," Scalia asked the students. "Do
you not realize that you are a small cream at the top, and that your views on
innumerable things are not the views of
The
Scalia-Breyer debate offers an invaluable glimpse of the inner workings of the
Court and what must be a fascinating exchange of ideas among the justices--who
also clash on the most fundamental questions of jurisprudence, constitutional
interpretation, and the role of judges.
This
nation would be better served by more public arguments of this caliber. The
U.S. Supreme Court must protect its dignity, and the Court's conference
sessions are appropriately conducted in private. Nevertheless, on issues as
fundamental as the philosophy of constitutional interpretation, and on
questions as specific as the use of foreign court decisions in the work of the
Supreme Court, this debate should be made public.
The
audience at the