Courting Abroad
The use and abuse of foreign law by the U.S. Supreme Court.
by Jeremy Rabkin
04/10/2006

PRESUMABLY, IT WAS NOT quite the debate Justice Ginsburg had in mind. But then, it's not clear that what she really wanted was a debate. Maybe we should have one, anyway.

At the beginning of February, Ruth Bader Ginsburg traveled to South Africa, where she gave a public address on "The Value of a Comparative Perspective in Constitutional Adjudication." She defended the Supreme Court's recent practice of taking guidance from foreign law when interpreting the U.S. Constitution. She acknowledged that the practice has been criticized. She expressed concern at bills before Congress condemning the practice.

Justice Ginsburg has given this sort of speech before, as have several of her colleagues on the Court. She tried to give more edge to this speech by noting that dismissive treatment of foreign opinion had also featured in the Supreme Court's 1857 decision in Dred Scott v. Sanford, which proclaimed a constitutional right to hold slaves--whatever Congress or international opinion might say. If that were not enough to stigmatize modern-day critics, Ginsburg added that congressional protests "fuel the irrational fringe." A posting on an Internet "chat" site, she explained, had denounced Justice O'Connor and herself for citing foreign law in their opinions and then called on "commandos" to see that "those two justices will not live another week."
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