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Tuesday, November 11, 2003

Anarchy in the Courts
Supreme Court Justices Sandra Day O'Connor and Ruth Bader Ginsburg have come up with the worst idea in the history of law. They argue that U.S. courts should "recognize the rich resources available to us in the decisions of foreign courts." By this, O'Connor means that "conclusions reached by other countries and the international community... should at times constitute persuasive authority in American courts." I see two tiny problems with this idea. First it would destroy the checks and balances that have preserved our democracy. And then it would create utter anarchy in the courts, leading to an explosion of litigation and a shriveling of commerce. But other than that, it's a great idea.

If a foreign decision is not in conflict with American law and precedent, than referring to it is a pointless exercise. I can only read her words to mean that courts would have latitude to disregard American laws, if they could find some justification in foreign law. The Constitution gave the courts power to enforce our laws, but this would castrate Congress and give judges the ability to veto laws and write new ones in their stead. This goes beyond judicial activism and veers towards war on the Constitution. It's insane.

Furthermore, how can I keep myself within the bounds of the law when I don't know which laws apply? The whole reason for courts sticking to precedent is that it creates a stable framework in which citizens can act, free from arbitrary punishment. Precedent is self-consistent. But laws passed by separate legislatures and upheld by separate courts are not going to be self-consistent. If I enjoy a beer at the local tavern, I am breaking the law in Saudi Arabia. Same when Dubya reads his bible. If I praise Hitler, I'm breaking the law in Germany. If one country says a doctor must inform a minor's parents before providing an abortion, and another country says a doctor must respect the minor's wishes, that doctor cannot possibly obey the law. Is there any way that this is a good system?

Here is the transcript (pdf). And here is David Limbaugh:
[O'Connor] said that in recent years, the U.S. Supreme Court has broken from its practice of "declin[ing] to consider international law when reaching important decisions," and is now "acknowledging the thoughts of the global community." Relying on foreign court decisions "may not only enrich our own country's decisions, I think it may create that all-important good impression," said Justice O'Connor, as if addressing diplomats at the United Nations.
[...]
Justice Ruth Bader Ginsburg is similarly unapologetic about the court's increasing resort to foreign authority. She acknowledged "the growing effect of international law" on the court's decisions, especially in death penalty, race admissions and gay sex cases. "Our island or 'Lone Ranger' mentality is beginning to change," she said. Justices "are becoming more open to comparative and international law perspectives."

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