Speaking at an Ohio State University symposium honoring her 15 years on the Supreme Court, Justice Ruth Bader Ginsburg defended citing foreign law in Supreme Court decisions. She said the controversy was a misunderstanding between being bound by foreign law and merely citing it as a wise influence. She had this to say:
“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law … 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?”
I can understand and appreciate the distinction that Ginsburg is trying to make – that merely because one brings up an argument made by a foreign court doesn’t mean that America is then bound by that foreign argument. But to my mind, if you have used that foreign court decision as a factor in interpreting American law, then that foreign decision does indeed bind American citizens in the sense that it shapes a binding Supreme Court decision.
The Supreme Court has cited foreign law several times as early as 2003, even going back to 1829 in patent law cases involving English law. Despite such a seeming precedent, the controversy arises for some because the Supreme Court ought to be in the business of interpreting American law via the Constitution, not scrutinizing foreign opinions for arguments supporting a position. It comes back to the question of judicial activism and whether justices should be in the position of “legislating from the bench.” My own philosophy is that of strict constructionism – that is, the judiciary in particular, but by extension all branches of government, are bound by their expressly enumerated powers and by what the law specifically says. Of course there’s always wiggle room, and past precedents should be revisited when it is warranted, but the Supreme Court’s duties are to strike down unconstitutional policies and procedures and to clarify laws that have a question about them. It should never be in the purview of the unelected judiciary to create de facto law in the course of deciding a case.
Ginsburg has defended the use of foreign law before, to which National Review gave an eloquent rebuttal. In this most recent example she laments the fact that American Supreme Court decisions aren’t as widely cited as they used to be because they don’t appeal to the world community, which in my mind is the weakest argument for citing foreign law and gets at the heart of why so many people in and out of the legal profession have such a problem with it. The duty of the Supreme Court of the United States to faithfully interpret the Constitution and the U.S. Code for the benefit of American citizens. Impressing judges across the globe should be the last priority for any serious judge.