August 03, 2003
US Supreme Court Basing Decisions On Foreign Precedent?
The job of a Supreme Court Justice is to interpret laws written by Congress and to defend the Constitution as the supreme law of the land.
The only tools needed for the job are the Constitution itself and common sense.
The Supreme Court is not supposed to formulate law. It is not supposed to make popular decisions (only ones that are consistent with the Constitution). It is most certainly not supposed to be looking to foreign courts for "guidance" on important issues.
To do so is to abdicate the Court's responsibility in favor of some "global view of judicial decision-making."
We don't pay Justice Ginsburg to care what the French think, we pay her to make judgments about US laws as they relate to the Constitution. That is it.
If Justice Ginsburg wants to introduce foreign legal concepts into the American legal system, that's fine. There is an avenue available to her in which she can fulfill those desires.
She can run for Congress.
As long as she stays on the Supreme Court, though, she needs to stick to the job we hired her for.
To do otherwise would be insubordination, which isn't exactly good behavior, now is it?
It's not that simple. The United States is a common law country, and much of our law is unwritten. The derivation is from the English common law, which itself was derived from German (particularly Saxon), Norwegian and Frankish/Norman concepts of law, mixed with bits of Roman law and the various Celtic concepts pre-dating the Saxon invasions.
As such, it is certainly both permissable and reasonable for the courts to draw on the common law courts of other Anglophone countries, and certain non-Anglophone countries which share a similar legal tradition (that includes the Scandivian countries and the Netherlands, for instance) in order to inform the court's reasoning. This is a feature, not a bug.
The Constitution can only be understood in the context of the common law that it overrules and structures. Unlike, say, the French system, our law is at its base natural, not statutory.
Posted by: Jeff Medcalf at August 4, 2003 12:17 PMComments have been closed on this entry in an effort to conserve disk space. If you have feedback on this entry, please email me at blog - at - cbnoble.com.
-Best
-Good
-So-so
-Not good
-Terrible
