Is there anything in the Constitution saying it is either premissable or unconstitution to look at foreign or international decisions/laws? Can Congress pass a law preventing the Court from looking at foreign or international decisions/laws? Has Congress established any rules on this? What about lower courts looking at these decisions/laws?
This thread is related to another thread:
http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=231756
They can look anywhere for advice. US laws had an English basis so in early US history, they would have looked at foreign (English) laws a lot.
U.S. Constitution, Article VI.
Courts in the United States are not bound by the decisions made by courts in other jurisdictions. The Supreme Court issues decisions which are binding precedent on the entire country. The country is divided up into circuits. The circuit courts of appeal are bound by Supreme Court precedent. They are not bound by the precedent of any other court anywhere in the world, including precedent in another U.S. circuit. For example, a decision rendered in the Fifth Circuit is not binding on the Seventh Circuit court of appeals. Additionally, each circuit is broken down into districts. SCOTUS decisions and the decisions of that circuit’s appeals court are binding on the district courts and no other decisions are. For example, a district court in the Fifth Circuit is bound by SCOTUS and the Fifth Circuit Court of Appeals decisions, but a district court in the Seventh Circuit is not bound by the Fifth Circuit court’s precedent. Decisions of one district court are binding only within that district. Thus, the “law of the land” can vary from circuit to circuit or from one part of a state to another depending on what the highest level of court ruling on a particular question is.
Courts are free to take judicial notice of decisions rendered in other jurisdictions, but are not bound to follow them as precedent. For example, the Seventh Circuit may look at how the Fifth Circuit appeals court decided a case similar to one before it, but the Seventh Circuit is able to find a result the same as, varying from or even completely opposite the result in the Fifth Circuit. Often SCOTUS will take an appeal on a matter where there are contradictions between circuit court rulings to settle the matter. A court could conceivably take judicial notice of the findinds of a foreign court.
I recently read an article about SCOTUS hearing an oral argument where the decision of a foreign court was mentioned. Justice Scalia snapped that the decision of the foreign court was “dicta,” which is “statement of opinion or belief made by a court that is authoritative, though not binding on lower courts.” Scalia went on to say something to the effect of “we don’t pay attention to our own dicta, let alone dicta from other countries.” Whether this is a statement of fact, that the decisions of foreign courts are legally considered dicta in the United States, I don’t know.
IANAL, etc.
You’ve put your finger on an issue as old as courts. Well certainly as old as Brown v. Board of Education, anyway.
There are many who would relish a rule requiring the Supremes to apply only the text of the Constitution. Some of them are on the Court. But the problem of enforcing such a rule is difficult to solve. You could make it possible for congress, or the voters to overrule Supreme Court cases. But how would you enforce rules on the standards that they applied? To whom would you appeal? So it turns out not to be a practical idea.
The decisions of lower courts are, of course, reviewed by higher courts. In limited situations, higher courts reserve the application of certain rules to themselves, which theoretically limits lower courts from using those materials in their decisions. Again, this does not work very well in practice. An example of this kind of thing is the Ninth Circuit recall case, where the Ninth Circuit temporarily enjoined the recall vote. It relied on Bush v. Gore, which epressly forbade other courts from relying upon it. Anyway, it just doesn’t work like that.
In order:
(1) No.
(2) Congress can pass anything it wants. Such a law would probably be unenforceabel, however, due to the separation of powers doctrine.
(3) No.
(4) See (1).
That’s what makes it funny. Oh that Scalia, he’s a wit. Parts of almost every legal opinion are dicta. Judges love to read their own writing, so they often wax on about rules of law that are not necessary to their decisions. Some of the most famous dicta of our time is footnote 4 of the Carolene Products case. In a case about milk, the court noted that it might apply a stricter standard of review to legislation involving minority groups. Justice Stone’s footnote had no bearing on legislation involving milk. But smart lawyers seized upon it and civil rights law was born.
The point here is that footnote 4 was dicta. No court was bound by it. Of course, the lower courts that ignored it were ultimately overruled by the Supremes when they took it up in civil rights cases. So in a sense, they were.
Similarly, here, the dicta in the foreign opinion, according to Scalia, was some point that was not related to the matter before the foreign court. Even a court in that jurisdiction would (probably) not be bound by it. The Supreme Court was definitely not required to follow it.
Scalia’s joke is more telling and cynical though. The Supreme Court is not bound by its own precedent, let alone its dicta. In recent years, some would argue that it has taken its precedents less seriously than in the past. So Scalia was making a joke about the meaning of precedent in the current Supreme Court. Hey was saying, “look, you have cited us a case from a foreign court, for a proposition that was not essential to its holding.” We aren’t bound by our own opinions, let alone the decisions of the courts of some other country. In fact, we don’t take any precedent very seriously anymore. Hah.
Here is the article I referenced earlier. The case involved the Warsaw Convention so how another international court interpreted it would certainly be informative. The relevant section:
I love Dahlia Lithwick’s writing. I don’t think Scalia meant it as a joke.
True, but of course there is the stare decisis doctrine by which the Court does follow its own precedent absent some good reason not to.
Unfortunately, the Court has expanded the definition of “good reason” to include changes in Court personnel. Though Planned Parenthood v. Casey is a modern example of the doctrine at work.
Otto, Scalia was saying that this particular point was dictum within the context of those Australian and English decisions, not that decisions of foreign courts are themselves dicta. They’re not – the term “dictum” refers to a statement in an opinion which is not logically necessary to the holding, not to any non-mandatory authority generally. As Gfactor notes, dictum is specifically a part of an opinion where the judge is declaiming about the law regarding an issue which isn’t directly before him. Foreign decisions are not considered dicta in U.S. courts – that’s analagous to stating that foreign bananas are considered banana peels in U.S. produce sections. Maybe foreign bananas aren’t as good or useful or important as U.S. bananas (if there were such a thing – bear with me here), but it’s not because foreign bananas are like U.S. peels – someone who said that would not understand the meaning of the word “peel.”
–Cliffy
I think we might be missing the point of the OP here.
I think he/she is really asking whether the Constitution grants the SC the right to review other states’ laws or rulings, not whether they can refer to them in opinions.
Presumably the OP is talking about a suit being brought against the US or a US corp or citizen in a foreign court, and whether the COTUS grants the SCOTUS the power to review the ensuing decision.
The answer is still no.