If you want to understand the legal and political debate over whether and when it’s proper for Supreme Court justices to rely on foreign legal materials, Justice Stephen Breyer’s op-ed in the Wall Street Journal won’t enlighten you at all. Nor, it’s a safe bet, will the forthcoming book of his that he’s flacking.
Breyer advances the proposition that “a considerable number of cases require us [Supreme Court justices] to examine the law and practices of other nations.” Stated so generally, the proposition is uncontroversial and trivial.
What is controversial and momentous—and unsound—is the practice of Justice Breyer and the four other living-constitutionalists now on the Court (Kennedy, Ginsburg, Sotomayor, and Kagan) of relying on contemporary foreign laws or decisions in determining the meaning of provisions of the U.S. Constitution. In my testimony before a House of Representatives committee ten years ago, I addressed the remarkably insipid arguments that Breyer had made in defense of this practice. (See part 2.b.) As I summed things up:
No Justice has articulated, and there is not, any legitimate basis for the Supreme Court to rely on contemporary foreign laws or decisions in determining the meaning of provisions of the Constitution. Moreover, it is clear that there is no principle that any Justice has devised or will adopt that will explain why it would be proper to look to some contemporary foreign and international legal materials, but not others, to construe the Constitution in some instances but not in others. The six Justices who nonetheless resort to these materials do so because they embrace an essentially lawless—i.e., unconstrained—view of their own role as Justices.
It is no coincidence that it is these same six Justices who have endorsed the vacuous New Age declaration that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” For that declaration is nothing more than camouflage for the underlying claim by those Justices to have the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of American citizens to address through legislation.
The Framers established a constitutional structure under which American citizens, within the broad bounds delineated by the Constitution, have the power and responsibility to decide how their own states and communities and the nation should be governed. In their ongoing project to demolish that structure, these six Justices see foreign law as another powerful tool that they can wield whenever it suits them.
In a confused and confusing paragraph near the end of his op-ed, Breyer writes:
The American public needs to understand what the “international” part of the Supreme Court’s work actually means—and what it does not mean. In particular, the frequent presence of foreign-related issues in the court’s cases has little or nothing to do with the current political debate about whether American courts, including the Supreme Court, should refer in their opinions to decisions of foreign courts. Judicial references to foreign law and practices do not reflect the ideologies of justices—rather they reflect a world in which cross-boundary travel, marriage, commerce, crime, security needs and environmental impacts have become prevalent.
But the “international” part of the Supreme Court’s work includes many things that are fine and some things that aren’t. The “current … debate,” which is as much legal as “political,” isn’t about whether American courts “should refer in their opinions to decisions of foreign courts.” It’s instead about whether it’s proper for justices to rely on such decisions to determine the meaning of American constitutional provisions.
Further, the selective engagement in that unsound practice by Breyer and company plainly does “reflect” their “ideologies.” As Justice Scalia points out in his devastating dissent in Roper v. Simmons (2005) (discussed in my testimony), the justices who invoke foreign law when it helps them haven’t done so when it doesn’t—“on matters ranging from the exclusionary rule, to church-state relations, to abortion.” Most recently (as I discussed in point 5 of this post), Breyer and the other justices in the majority in Obergefell—the very five who defend the misuse of foreign law—made no inquiry into foreign law. Why not? Because it would have cut against them: Foreign jurisdictions overwhelmingly reject SSM, and just last year even the European Court of Human Rights acknowledged that “it cannot be said that there exists any European consensus on allowing same-sex marriage.” In short, Breyer and company are entirely opportunistic and results-oriented in their resort to foreign law to resolve the meaning of provisions of the Constitution.