Supreme Court chief justice nominee Judge John G. Roberts Jr. yesterday rebuked a recent high-court decision that relied on foreign law, calling it a “misuse of precedent” that substitutes a judge’s “personal preferences” for the Constitution.
Sen. Jon Kyl, Arizona Republican, asked Judge Roberts what, “if anything, is the proper role of foreign law in U.S. Supreme Court decisions?”
The question was a reference to the Roper v. Simmons decision by the Supreme Court in March, in which the majority cited foreign law to overturn a death-penalty sentence for a 17-year-old murderer.
That 5-4 decision is cited by conservative legal scholars as one reason it is important for President Bush to appoint a reliable conservative to the Supreme Court.
One justice Mr. Bush has cited as a model for his appointments, Antonin Scalia, wrote a scathing dissent of Roper, declaring that when it comes to the court, “the views of our own citizens are essentially irrelevant,” while “the views of other countries and the so-called international community take center stage.”
Judge Roberts maintained that he didn’t want to comment on any particular case decided by the court.
“I would say, as a general matter, that there are a couple of things that cause concern on my part about the use of foreign law as precedent,” said Judge Roberts, beginning his critique by noting that while U.S. judges are not held directly accountable by the people, the politicians who appoint them are.
“In that way, the role of a judge is consistent with democratic theory,” Judge Roberts said.
But a Supreme Court ruling that cites foreign statutes, as the majority decision did, he said, circumvents that accountability.
“If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge,” he said. “And yet he’s playing a role in shaping the law that binds the people in this country. I think that’s a concern that has to be addressed.”
Mark R. Levin, president of the conservative Landmark Legal Foundation and author of “Men in Black: How the Supreme Court Is Destroying America,” said Judge Roberts was “right on.”
At yesterday’s hearing, Judge Roberts called the “little debate” this year at American University between Justice Scalia — who disagreed with the Roper decision — and Justice Stephen G. Breyer — who supported it — “very illuminating.”
It was clear, however, that Judge Roberts sided with Justice Scalia.
He said “domestic precedent” has the ability to “confine and shape the discretion of judges,” while noting that the precedent of foreign countries wrongly “expands the discretion of the judge.”
Ed Whelan, president of the Ethics and Public Policy Center, said it is unusual for a prospective justice to criticize directly a recent court decision. And while noting that Judge Roberts was careful not to cite Roper specifically, he said the nominee’s critique of its justification was correct.
“There is no legitimate basis for the Supreme Court to rely on contemporary foreign laws or decisions in determining the meaning of provisions of the Constitution,” Mr. Whelan said.