Right. Ground rules. This is a QUESTION. This is NOT a debate. I’m interested in the behavior of the Supreme Court in the past and accepted standards of legal research. Let’s keep that nonsense that can occur over in that train wreck in the Pit, right?
Good. I’ll proceed.
Rep Tom DeLay (R-TX) slams SC Justice Kennedy for writing an opinion in which he apparently takes into account standards of justice and law outside the boundaries of the United States.
Well and good. He has an opinion. I’m sure Justice Kennedy has one as well.
My question is this: Provided Kennedy does consult extra-US legal standards and behavior in forming his legal opinion on the case before him is he outside the standard behavior for SCOTUS?
That is…is there a history of taking legal precedents and theory as applied by other nations or the ‘international community’ and allowing such to be applied to cases in the United States Supreme Court?
What about lower courts? Do appellate courts and other lower benches use such to guide their legal thinking and rulings?
If either of the above questions is true can one of our fine scholars point out some examples for me (and others) to look at and learn from?
This is ignorance fighting at its greatest, ladies and gentlemen. I know you’ll rise to the occasion in spectacular fashion.
I can’t give you a cite off the top of my head, but certainly lower courts have relied on “common law” much of which dates back to English law from before the revolution. The Supreme Court is generally dealing with Constitutional matters. The Constitution is pretty precisely efine dto be what it is. The role for non-US law might come in an interprtation of what some specific term meant, I suppose.
One recent (relatively) case off the top of my head in which the majority (led by Kennedy IIRC) looked to foreign jurisdictions was Lawrence v Texas, the case in which sodomy laws were struck down. Not having reviewed the opinion recently, my recollection is that foreign decisions were cited as refutation for the idea, touted in the first sodomy case (Bowers) that sodomy laws were widely accepted throughout the Western world. IANAL but in such an instance SCOTUS taking judicial notice of the rulings of other courts seems within the bounds of proper procedure. Courts are always free to take judicial notice of the non-precedential findings of other courts.
IANAL, but I am aware that Paquete Habana, a Supreme Court case around the turn of the century, has a famous quote that "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. " Many, of course, would strenuously object.
That decision goes on to say that customary international law – that is, the body of international law that is described by scholars and set by the precidents of how nations act, not just the treaties that the US signs up to – is a valid source of international law. See more here.
There may well be contrary cases to this decision, but this is one that is often referred to in justifying the use of international law in our courtrooms.
Pretty much the entire history of the Supreme Court in the 20th century revolved around changes in the Courts attitude toward extra-legal public attitudes.
Workers rights cases changed from almost always favoring the company to a gradual imposition of workers rights, such as minimum wage, 8-hour days, health and safety laws, because of changing public opinions. The rights were found in the same laws that had earlier been used to repudiate those rights.
Civil rights legislation evolved in much the same fashion. Writers have made arguments detailing the gradual elimination of separate but equal laws over the course of the 50s and 60s and the way the Court tried to keep just far enough ahead of public opinion to have support on their side.
A fascinating, if sometimes dry, read on this is Brandeis and Frankfurter: A dual biography, by Leonard Baker, which talks about the differing ways the two men approached the issue and the way the court often went out of its way to cite studies, treatises, newspapers, investigations, and every other possible scrap of evidence that gave insight into the true nature of the problem.
The Court is a court of men far more than it is a court of laws. IMO. IANAL.
Depending on the context, the court has imposed standards that incorporate international law. For instance, a statute will be extraterritorialy enforced only to the extent that doing so is consistent with international law.
In the *Simmons * case, the Court considered a UN Convention and decisions by other countries not to execute minors to bolster a decision that he had already concluded was required. Such reasoning might be challenged as wasteful (you already made up your mind, so shut up), but it is hardly inappropriate or unprecedented. In fact, Justices frequently cite law review articles and state court decisions as well as decisions from other countries.
Here is an example.
“We must never forget that it is a constitution we are expounding.” (Marshall, J.) in McCulloch v. Maryland
International law in the sense Ravenman suggests is incorporated into the legal system through the Supremacy Clause: “This Constitution, and the laws and treaties made pursuant to it…”
However, it’s important to note that what Justice Kennedy is accused of doing, and in fact did do, though not in the disturbing sense in which Rep. DeLay alleges, is to consult foreign precedent.
Precedent is, of course, important in the resolution of every court case. The judge rules in accordance with decisions made in the past and the principles established from them. That means that the judge and the parties to the case don’t have to negotiate out every detail of how to resolve it; it’s understood that it will be conducted according to the custom of courts, applying rules of law that have evolved over the years (e.g., rules of evidence), and so on. When a thorny question of law comes up, one or both parties will cite a previous case as precedent.
When a superior court in the same jurisdiction has rendered a decision on a case that differs in no substantive way from the one before the court, that constitutes binding precedent. All state highest-court decisions are binding precedent for that state; SCOTUS decisions are binding precedent for all courts where applicable. A judge is obliged to rule on the basis of binding precedent, unless he considers the facts of the situation so different from that of the precedent case that the precedent actually does not apply.
However, any judge and lawyer worth his salt knows that often the relevant situation occurred in another state than the one in whose courts the case is being tried (the “forum state”). Or perhaps the same-level court in another county handled a similar case according to the laws of the “forum” state. These decisions are advisory precedent, meaning that the judge must consider them but need not rule in accordance with them. Complex cases may reference the court decisions of several states and even perhaps those of the U.K. or Canada or a province, in showing how other jurisdictions handled cases with greater or lesser similarity to the one being untangled in the present case.
As SCOTUS justices since James Iredell have done, Justice Kennedy, faced with a novel question, examined what courts outside the US legal system have done, and how their decisions had or did not have relevance to our Federal system and Constitution – using their cases as advisory precedent in exactly the same manner as a New Jersey lawyer or judge uses a California case as advisory precedent. I would venture to guess that every lawyer who has taken cases to court for any significant time has done much the same thing, appealing to the body of common law if nothing else.
Can you explain, then, why in Paquete Habana the decision continues on to state:
" For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat."
That, on its face, appears to state that customary international law can be as binding on the United States as are the treaties adopted by the President and the Senate. I grant you this may be different from what DeLay alleges is Kennedy’s wrongdoing, but the text of that decision seems plainly to defy your assertion. How can your state that this case has only to do with the Supremacy Clause when the decision quite explicitly refers to customary international law as described by “jurists and commentators”?
Ravenman, I completely accept your point that international law has been “incorporated” into the US legal scheme. The issue, however, was not whether the corpus of international law is applicable in cases where cross-national-border actions are under consideration, but the validity of cases dealt with in foreign courts being used as precedent.
Unless everybody has misconstrued Rep. DeLay, and he just heard about Paquete Habana! :o
Ravenman, you misunderstand. “Resort must be had” does not mean that such precedents are binding; it merely means that they are the only place left to look. Look at the language again: where there’s no treaty, and no guidance from any of the three branches of the U.S. government, the courts need to look elsewhere. AFAIK, the court is free to disregard such stuff and decide such novel cases by making shit up, but they are supposed to be setting precedent themselves, with reasoning that can be applied to later cases by lower courts, so they’ll generally use any precedent before they’ll work without one.
I’m with you. In a case of first impression, the Court will look at anyone else who has considered a similar issue, taking into account differences between their body of law and ours. For example, if the federal courts have never considered an issue, but Canada, Australia, France and Idaho have, the court will consider what the laws are in those jurisdictions, how those laws are similar to or different from federal law, the reasoning those courts used in reaching their decisions, and the result reached. If the reasoning makes sense, the Court may follow it, but the Court will never claim that the international ruling is precedential, merely persuasive. In other words, the Court is saying, if really smart people somewhere else have already reasoned this out, let’s look at their reasoning and see if it holds water for us.
It’s fascinating to me that Justice Kennedy is on the line for this, because Justice O’Connor has been a proponent of the Court considering international law for quite some time.
I have to admit that I have always been puzzled by this statement. Marshall says it as if the implications of “expounding a constitution” are apparent. They aren’t apparent or obvious to me. Was this simply a debater’s trick?
Actually, I think we’re saying exactly the same thing. Looking back on my previous posts, I may have just stated my thoughts poorly. I was simply countering the point that Polycarp raised, which seems to argue that courts may only consider international law if it is incorporated into our law through ratified treaties. I’m simply stating that, if there is no other controlling US law (established through Congress, judicial precidents, or treaties), then customary international law, which does not fall into any of those previous categories, may be considered by the courts. I think we’re in vehiment agreement, Nametag.
Obviously, opinions vary, and this discussion might well remove us from GQ. Here’s what we know:
First, the quotation in context:
So he is saying that the constitution should be interpretted–that not everything intended by the drafters is written down word for word. The decision was about federal power, rather than individual rights, but it clearly endorses an interpretive approach rather than a literal one. The particular phrase, I think, is meant to distinguish Constitutions, which Marshall thinks should be read expansively, from statutes, which are not supposed to be so read.
My Con law professor made a big deal about it in: Terrence Sandalow, “Constitutional Interpretation,” Michigan Law Review 79 (1981). A must read, if you are taking his con law exam.
The phrase by itself doesn’t add much to the debate. I suppose the only rejoinder to “we must never forget that it is a Constitution we are expounding,” is, “Well, duh!!” So in that sense, it is a rhetorical device.