The Supreme Court's History of Indifference to the Opinions of Other Countries' Courts

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Ms. Dudziak is Judge Edward J. and Ruey L. Guirado Professor of Law and History, University of Southern California Law School.

Last spring, in the landmark gay rights case Lawrence v. Texas, the U.S. Supreme Court referred to an opinion by the European Court of Human Rights finding a law that criminalized consensual homosexual conduct to violate the European Convention on Human Rights, a departure from the Court's nearly unbroken record of ignoring non-U.S. law.(1) Justice Antonin Scalia decried this development. American constitutional rights do not emerge, he argued, "because foreign nations decriminalize conduct....The Court's discussion of these foreign views...is therefore meaningless dicta. Dangerous dicta, however, since 'this Court should not impose foreign moods, fads, or fashions on Americans.'" (2)

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Scalia's reluctance to see the Court draw upon non-U.S. sources has roots in the history of the U.S. Supreme Court. Just this summer, in fact, I stumbled upon support for Scalia's position in the papers of Chief Justice Earl Warren at the Library of Congress. Justice Warren himself didn't agree with Scalia. Indeed, the Chief Justice promoted comparative constitutionalism in his travels throughout the world, even if he failed to cite the opinions of other courts, while relishing their citations to him.(3) The support for Scalia's position came instead in correspondence forwarded to Warren for his amusement by the Editor of the American Journal of Comparative Law.

The Journal received the following letter from the Librarian of the Ninth Circuit Court of Appeals, in September 1955:

Dear Sirs:

We have received the four numbers of Comparative Law and wish to express our thanks. But we shall not be able to subscribe. Ours is a Federal Court of Appeals library for the court and those having business before it. Obviously the comparable general laws subsisting in other governments, and most of them comparable only to state laws, would infrequently be of weight in determining what the Federal law is or ought to be. This is not to question the excellence of your publication. Moreover this library is now cramped for space, and cannot be extended into a general law library for public use.

Yours very truly,

George F. Longsdorf, Librarian.(4)

The editor of the spurned journal, Hessel E. Yntema, wrote back to say that "it has been the feeling of our Board of Editors that the current international position of the United States is of general significance for the legal profession and it has become even more desirable than before to enable the leaders of our legal profession, and in particular those in the judiciary, to follow legal developments outside of the United States...." (5)Yntema shared the correspondence with Justice Warren because the two had recently commiserated about the indifference of American lawyers to law outside of the U.S. (6)

The international position of the United States seems not to have diminished in the many years since 1955. As courts in other nations have come to cite each other frequently, perhaps what is most surprising of all is not the U.S. Supreme Court's recent departure from its tradition of doctrinal isolationism, but rather that it has taken another half century for the American Court to join in the game.

(1)Lawrence v. Texas, No. 02-102, slip op. at 12 (June 26, 2003).

(2)Lawrence v. Texas, No. 02-102, slip op. at 14 (June 26, 2003) (Scalia, J., dissenting) (quoting Foster v. Florida, 537 U.S. 990, n.* (2002) (Thomas, J., concurring in denial of certiorari).

(3)See Warren correspondence with various judges in other countries in Papers of Earl Warren, Personal File, Foreign File, Library of Congress.

(4)Longsdorf to American Journal of Comparative Law, September 7, 1955, Papers of Earl Warren, Supreme Court File, Correspondence, Box 360, Folder: GENERAL, Oct. 5 1953-1956.

(5)Yntema to Longsdorf, September 15, 1955, Papers of Earl Warren, Supreme Court File, Correspondence, Box 360, Folder: GENERAL, Oct. 5 1953-1956.

(6)Yntema to Warren, September 15, 1955, Papers of Earl Warren, Supreme Court File, Correspondence, Box 360, Folder: GENERAL, Oct. 5 1953-1956

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Josh Greenland - 10/1/2003

My understanding is that the British parliament has MPs from Scottish districts, who according to my Welsh British informant exist in Parliament in slightly to somewhat greater numbers than the population of Scotland would otherwise warrant. I can ask if you want, but I'm sure Wales also contributes members to Britain's parliament.

I'm sure this political setup is part of the general scheme of English political dominance, but the dominated could hardly argue that they didn't get something for giving up sovereignty. There is, BTW, a resurgent Scottish nationalist movement. The director of the movie Trainspotting, for instance, has made some caustic public comments about Scotland's position vis a vis England.

don kates - 10/1/2003

In response to your respective questions I must admit that I do not know squat about the constitution of S. Africa or the LEGAL difference between England and Britain. It was my understanding that England's Parliament legislates for the entire island, but maybe I am wrong. As to the S. African constitution, my first question would be is it being effectuated or just a paper document?

Josh Greenland - 9/28/2003

"One might add South Africa to the list of countries with liberal constitutions on the level of ours."

Altogether maybe, but not on gun issues.

Josh Greenland - 9/28/2003

Don, when you say England, do you mean England or Britain?

Derek Catsam - 9/27/2003

Don --
One might add South Africa to the list of countries with liberal constitutions on the level of ours.

NaughtyPundit - 9/27/2003

Quoting piracy is cute, but that's just referring to common sense. Like it or not, international law has no place in U.S. law. I don't mind comparitive case studies, but American laws are bound by the American Constitution and American society. Otherwise, the Supreme Court could get ahead of itself and end up doing something crazy like abolishing the death penalty just because of the cultural quirks of the French.

Walter Hearne - 9/24/2003

Yes, CONGRESS has the power to DEFINE and PUNISH offences against the law of nations. Congress is a body of elected officials. The Constitution empowers them to say exactly what an offense against the law of nations is, and to prescribe the punishments. I see absolutely no justification in that for the Supreme Court citing foreign law and public opinion in, say, striking down a statute on sodomy.

Nor do I see anything in the Paquette Habana case that would justify such an expansive reading. The "law of nations" as utilized by the Court in that case is qualitatively different from the citation of the laws and popular attitudes of, say, France, or any other nation, as a rationale for telling legislatures what laws they can or cannot pass, or for giving moral instruction to the American people on which beliefs are enlightened, and which are benighted.

Your position relies on an extraordinarily expansive reading of the term "law of nations" that is simply inconsistent with, and antagonistic to, the principles of republican government upon which this nation was founded. In addition, your apparent belief that there is no ideological project behind this reading is naive (or is it cynical?) and absurd.

Jacob Goldfinger - 9/24/2003

Section 8 gives Congress the power "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations."

In The Paquete Habana (1900), the Supreme Court ruled that fishing vessels were exempt from capture as prizes of war, basing this finding on international custom, reaching back to orders of King Henry IV to his naval officers nearly 500 years before. "By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war."

International law was always intended to be part of U.S. law, despite the recent ideologically driven claims to the contrary.

Walter Hearne - 9/24/2003

...is any constitutional justification for incorporating foreign laws and legal doctrines into American jurisprudence, except for the notion that the Court ought to "join the game." From the tenor of the article, it is apparent that Professor Dudziak is against "doctrinal isolationism," in her loaded terms. Foreign courts cite each other, so why not us? This argument simply boils down to "everybody else does it." Dudziak's blindness to the Supreme Court's ever-increasing distance of the Supreme Court from the anchor of republican government, all in the name of the god of international progressivism, is part of the reason why I have little to no faith in our law schools. All hail judicial supremacy.

don kates - 9/24/2003

Being a liberal civil libertarian I find it particularly ironic that any American legal scholar (except the most reactionary) would support consideration of foreign authority and practices. It is only because conservatives are so myopically provincial that the Warren Court's liberal decisions were not deluged with examples from England and the nations of Western Europe to show that the U.S. was (and is) alone in imposing such restrictions on police power. The Miranda decision had some basis in English police practice, but went far beyond.
Even with all the Supreme Court's retrenchments in recent years, American law is far, far more liberal than in any other nation with the possible exception of Israel. A German court, for instance, recently upheld the firing of a teacher of the Islamic faith because she wore a covering over her head.
In the 1990s England suffered the same kind of catastrophic increase in criminal violence the US suffered in the 1960s. It will surprise many Americans to know that England now has among the developed world's highest violence rates -- a rate twice that of the US. [Kesteren, John van, et al. 2001, ‘Criminal Victimization in 17 Industrialised Countries: Key Findings from the 2000 International Crime Victimization Surveys
] England's reaction differs radically from the Warren Court's concern with the rights of the accused. So far England has severely restricted defendants' rights to confront witnesses against them. Hearsay evidence is now admissible against the accused. And what if the jury nevertheless foolishly acquits?
The police just arrest him again and retry him -- for England has abolished the doctrine of double jeopardy.
England has always had censorship of movies, plays etc. Now censors' powers are being expanded to allow the suppression of rap and other music w/ lyrics the censors feel may promote violent thoughts.
Many Americans, especially doctors, bewail our contingent fee system which allows even the poorest American access to legal redress. Well, they sure don't have to worry about that in Europe. What happens if a truck knocks down a pedestian in Europe depends entirely on the victim's wealth. If he is rich he can hire a lawyer whom he pays to sue the trucking company for crippling him for life. If he cannot afford a lawyer, however, all he gets is free medical care from government, and no redress for losing the use of his limbs.
Yes, there are some few instances in which looking to Western European law would yields more liberal results. But in the great preponderance of issues Western European precedent and practice would yield far less liberal results.
Moroever, if we should be open to law from other nations, why should it be just Western European law? Why don't we look to Russia where economic crimes are punishable by death? Or to the Islamic nations where blasphemy, adultery and various other non-crimes under American law are so punishable?
Every American who values liberty and equality should be thankful that American courts pay so little attention to foreign legal principles and practices.

Andre Mayer - 9/23/2003

The Supreme Court's reference in Lawrence to a ruling of the European Court of Human Rights is interesting partly because it could carry implications for future reconsideration of the death penalty. The definition of "cruel and unusual punishments" might seem to have something to do with what another document called "a decent respect to the opinions of mankind"; the death penalty is precisely the sort of issue on which standards elsewhere in the Western world might be given some weight.

Oscar Chamberlain - 9/23/2003

If memory serves, there was some debate during the Marshall Court period over the extent to which case law in Great Britain could serve as precedent (or at least as a guide) for U.S. court rulings.

There was a logic to doing so. The U.S. legal system strongly reflected the English model and common law precedents, of necessity, stretched back into the colonial period.

However, the benefits the British cases might have brought had to be balanced against a strong sense of nationalism, the considerable anti-British sentiment that continued for a long time after the War of 1812, and a strong push in many states to limit the range of common law. So, the influence of British rulings dwindled.

AS for other countries, the barrier of language (I suspect) and the strong differences between our system and those based on the Napoleonic code put practical limits on the use of their decisions.