Thought Theater

Scalia: Foreign Legal Decisions Not Relevant genre: Polispeak & Six Degrees of Speculation

Supreme Court Justice Antonin Scalia continued his criticism of the consideration of foreign legal decisions when reviewing U.S. constitutional issues. Generally speaking, Scalia has a point if it were true that such considerations were overruling the U.S. Constitution. In fact, that has not been the case. Scalia fails to point to any decisions where foreign decisions have been allowed to subvert the Constitution. In practice, these foreign rulings have been additional citations in support of rulings decided under the U.S. Constitution.

His remarks are a continuation of the rhetoric used by the right to assail rulings made by those they consider to be activist judges. The Associated Press has the full story here.

(AP) Firing the latest round in a debate with his Supreme Court colleagues, Justice Antonin Scalia on Thursday decried the use of foreign law in interpreting the U.S. Constitution on issues ranging from the death penalty to homosexual rights.

Scalia criticized the court's use of foreign law in a decision striking down a Texas statute that made gay sex a crime, a ruling in which he strongly dissented.

Justice Steven Breyer has said it's appropriate in some instances to look at the law in other places. Justice John Paul Stevens has said allowing U.S. courts to consider the views of international jurists while making a decision is a responsible practice. Before his death, Chief Justice William H. Rehnquist weighed in against the use of foreign law, and Justice Clarence Thomas has done so as well.

Before her retirement, Justice Sandra Day O'Connor dismissed growing criticism about the Supreme Court's use of international law in its opinions, saying it makes sense for justices to look at foreign sources when a point of law is unclear.