Fright of the Day: Justice Breyer Argues Value of American Judges Consulting Foreign Law

It is a scary day in June when a justice of the United States Supreme Court insists upon the value of looking to foreign law and practice as an aid in the interpretation of American law.

Curiously, Justice Breyer, in yesterday’s brief defense of this argument at Brookings, adapts the shabby and insubstantial construct of “displacement,” offered in explanation by his wife, a psychologist, to dismiss out of hand the purportedly few critics of this world-consultative approach. And for that matter, he tells us, American judges are already consulting with other judges in various nations. So what’s the big deal?

Justices Scalia and Breyer have debated this issue previously. Justice Scalia:

Why is it that foreign law would be relevant to what an American judge does when he interprets — interprets, not writes — I mean, the Founders used a lot of foreign law. If you read the Federalist Papers, it’s full of discussions of the Swiss system, German system. It’s full of that. It is very useful in devising a constitution. But why is it useful in interpreting one?

Isn’t Justice Breyer’s notion simply another iteration of the radical “one-world” stance — that hyper-democratic and globally populist ideal — which assumes we all choose to be governed similarly, despite our valuable and often profound differences?

Justice Scalia, again:

…what does the opinion of a wise Zimbabwe judge or a wise member of the House of Lords law committee, what does that have to do with what Americans believe, unless you really think it’s been given to YOU to make this moral judgment, a very difficult moral judgment? And so in making it for yourself and for the whole country, you consult whatever authorities you want. Unless you have that philosophy, I don’t see how it’s relevant at all.

Justice Breyer:

Well, it’s relevant in the sense that you have a person who’s a judge, who has similar training, who’s trying to, let’s say, apply a similar document, something like cruel and unusual or — there are different words, but they come to roughly the same thing — who has a society that’s somewhat structured like ours. And really, it isn’t true that England is the moon, nor is India. I mean, there are human beings there just as there are here and there are differences and similarities. And so one is not trying to figure out the meaning, really, of the words “cruel and unusual punishment,” one is trying to deal with their application.

It is terrifying to hear that law enacted under systems not archetypally defined by and through the American Constitution may, through this Justice, become influential to the decision-making of the highest American court.

While global judicial cooperation may assist in the streamlining of international dispute resolution, the recent institutional decisions within a judicial block, such as the EU — that awful federalizing, steamrolling behemoth which the English have rightly spurned — make even that approach questionable. What is essentially ours we would choose to keep that way.

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