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

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)

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