Supreme Court Justices Antonin Scalia, Sandra Day O’Connor and Stephen G. Breyer clashed last week over the role of international law and foreign judges at a rare group discussion in Washington.
At the forum, broadcast on C-SPAN television last week, Justice Breyer appeared the most sympathetic to justices citing international law and foreign court decisions, saying the high court is faced with “more and more cases” in which the laws of other countries are relevant.
“Where there is disagreement is how to use the law of other nations where we have some of those very open-ended interpretations of the word ‘liberty’ or ‘cruel and unusual punishment,’” he said.
“It’s appropriate in some instances to look to how other courts might have decided similar issues,” although laws of other countries “do not bind us by any means.”
Justice Scalia said “foreign law is totally irrelevant” on most issues, such as the original meaning of the Constitution or what Americans now see as fundamental rights.
“It doesn’t show what the Constitution originally meant, and it doesn’t show what is fundamentally important to Americans today,” he said. “It shows what’s fundamentally important to somebody else today.”
Justice O’Connor, in her first public remarks on the issue, called the debate over the role of foreign law “much ado about nothing.”
“There are areas where we look to foreign law to interpret treaties that other nations and we have joined,” she said. “Of course we look to foreign law.”
Although it may not help to consult foreign law in interpreting the meaning of the First Amendment, she said, it does not hurt to be aware of what other countries have done when weighing such evolving concepts as “cruel and unusual punishment.”
In early March, the justices made international precedent an issue by striking down the death penalty for juveniles. Justice Anthony M. Kennedy cited the “stark reality that the United States is the only country in the world? that executes juveniles.
Justice Breyer was among the majority in the ruling. Justices Scalia and O’Connor, along with Justice Clarence Thomas, dissented.
The forum at the National Archives Building, which also was sponsored by the National Constitution Center and the Aspen Institute, was moderated by Tim Russert of NBC News.
The three justices agreed that televising oral arguments before the high court is a bad idea.
Justice Scalia said it would “misinform the public rather than inform” it. For every person who watches an oral argument on C-SPAN from gavel to gavel, “ten thousand will see 15-second takeouts on the network news, which I guarantee you will be uncharacteristic.”
Justice O’Connor agreed. The same-day release of audiotapes of oral arguments, which the high court has done for major cases in recent years, on the other hand “has worked pretty well.”