Supreme Court Girls Gone Wild!

Ruth Bader Ginsburg, one of our shining lights on the Supreme Court, recently gave a speech wherein she defended pulling legal arguments out of her ass, or if not out of her ass, from legal decisions made in more enlightened societies, such as the nations of Europe:

... A mid-19th century U.S. Chief Justice expressed opposition to such recourse in an extreme statement. He wrote: No one, we presume, supposes that any change in public opinion or feeling . . . in the civilized nations of Europe or in this country, should induce the [U.S. Supreme Court] to give to the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted.

Those words were penned in 1857. They appear in Chief Justice Roger Taney's opinion for a divided Court in Dred Scott v. Sandford, an infamous opinion that invoked the majestic Due Process Clause to uphold one human's right to hold another in bondage. The Dred Scott decision declared that no "descendants of Africans [imported into the United States], and sold as slaves" could ever become citizens of the United States.

The probably some Latin term for the error in logic here, but it seems to go something like this: I don't like the result of a decision made by this guy, and we all can look back and see that it was wrong on policy grounds (if not on the grounds of what a Supreme Court Justice is bound to be constrained by), so anything that he said in this particular case, whether it be specific to this case or a more fundamental and general point, is therefore wrong. And you have to be a racist not to see that.

While the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution reversed the Dred Scott judgment, U.S. jurists and political actors today divide sharply on the propriety of looking beyond our nation's borders, particularly on matters touching fundamental human rights. Some have expressed spirited opposition. Justice Scalia counsels: The Court "should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."

Wow! How about that? Is she admitting that there is actually a democratic political process for correcting injustices foisted upon us by antiquated laws? And here all this time I thought the world's hopes hinged upon the enlightened opinions of 5 SC Justices to save us from ourselves, handing down their decisions as if they are Moses descending Mount Sinai.

... Many current members of the U.S. Congress would terminate all debate over whether federal courts should refer to foreign or international legal materials. For the most part, they would respond to the question with a resounding "No." Two identical Resolutions reintroduced last year, one in the House of Representatives and the other in the Senate, declare that "judicial interpretations regarding the meaning of the Constitution of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such [materials] inform an understanding of the original meaning of the Constitution."

All of this sounds eminently reasonable to me. So what is the argument against it and in favor of selectively and arbitrarily choosing decisions we like from other countries to support votes we want to cast today that otherwise enjoy no support from within the U.S. legal system?

These measures recycle similar resolutions and bills proposed before the 2004 elections in the United States, but never put to a vote. Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support. And one not-so-small concern - they fuel the irrational fringe.

Why is it disquieting? On what logical basis? Fueling of the irrational fringe? It would seem to me that unless you want to argue against the point on its merits, you should expect the irrational fringe to be fueled. So Ginsburg gives no rational support for her view, feeling like she is entitled to do whatever the hell she pleases as SC Justice, and it is the fueling of the irrational fringe that is problematic?

A personal example. The U.S. Supreme Court's Marshal alerted Justice O'Connor and me to a February 28, 2005, web posting on a "chat" site. It opened:

“Okay commandoes, here is your first patriotic assignment . . . an easy one. Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases.

This is a huge threat to our Republic and Constitutional freedom. . . . If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.”

So if you disagree with her, you clearly want to kill her. And because you want to kill her, you cannot possibly be right about your view.

To a large extent, I believe, the critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions. We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of "common denominators of basic fairness governing relationships between the governors and the governed.

If they are not cited as controlling authorities, what is their relevance to the decision at all? Who needs a common denominator of fairness? If a decision goes against a common denominator of fairness, does that mean it's a problem? Presumably not, as long as it is consistent with controlling authorities. Or would she reverse her decision and ignore controlling authority in favor of a common denominator of fairness. If so, that is a big problem. If not, I guess she just throws these opinions into her rulings to show the world how enlightened she is in contrast to those of us on the irrational fringe. That qualifies her to be a NYT editorialist, no doubt, but I'm not sure that qualifies her for the SC.