Sunday, April 12, 2009

From the clueless wing of the Court

Supreme Court Justice Ruth Bader Ginsburg offers up to the New York Times this stirring, albeit disastrously flawed, defense of citing foreign case law:

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.

You mean aside from the fact that the judge, unlike the professor writing the law review article, is working from and issuing opinions based on a different country's constitution and statutes?

Ginsburg goes on:

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.”

Uh-huh. And the US Supreme Court should have influence abroad...why, exactly?

Its job is to interpret the Constitution and laws of the United States. Any foreign influence should be coming from the laws the Court is interpreting, not the Court itself.

Last, but certainly not least, there was this little gem:

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.”

She cannot be serious. Please tell me Ginsburg is not serious, here.

In the early 19th century--in the early 1800s--the "decisions of other courts" she's talking about were English common law. These were the legal codes of the United States' direct predecessor, adopted as the building blocks of American law.

If Ginsburg can't see the difference between citing English common law back then and citing the rulings of foreign judges in interpreting the Constitution today, then the Court is in even sorrier shape than I could have imagined.

And just think--on the liberal spectrum, Ginsburg is considered a moderate.