Monday, April 04, 2005

Justice Ginsburg and Secretary of State Rice at the ASIL; More on Citation to Foreign Sources by U.S. Courts

As many of you may already know, Justice Ruth Bader Ginsburg gave the keynote address at the American Society of International Law’s Annual Meeting. This, in and of itself, is worthy of special note. However, on top of this, Secretary of State Condoleezza Rice introduced the Justice with a short speech covering the relation of the rule of law to the expansion of liberty around the world. See the New York Times article about the speeches here.

Justice Ginsburg’s speech focused on the debate over citing to foreign law in court opinions. Noting that judges are “free to consult all manner of legal commentary,” she gave a spirited defense of the practice of reading and citing to foreign opinions. In part, her reaction to the criticisms of citing to foreign law can be described as that it is much ado about nothing or perhaps much ado about very little. No U.S. judge citing to foreign law claims that it is in any way binding; quite simply it is a matter of looking to what other legal experts facing similar problems have done. She discussed cases from the Supreme Court and from the circuit courts that referred to foreign law.

Justce Ginsburg was clearly nonplussed by criticism that citing to foreign law is like going to a cocktail party and picking and choosing who you talk to. Both sides to a litigation can draw analogies to foreign law (or other non-binding material, for that matter)… if it seems reasonable, if we can learn from it, then why shouldn’t we be able to look at it, if we choose to? As for the argument that other countries have learned from us in how to build constitutional democracies, thus it would be backwards for us to look to them for ideas, she paraphrased Judge Patricia Wald in concluding that “wise parents know how to learn from the experiences of their children.”

I agree that this debate is really much ado about very little. Nonbinding material ranging from literature to the writings of political philosophers to the decisions of courts from other states of the U.S. to the decisions of foreign courts are referred to by judges from across the political spectrum. It is hard to make an argument that one non-binding source can not be allowed (foreign judgments) while most or all the others can. Justice Scalia, to his credit, argues that his view of foreign law is based on his interpretive originalism that would be hostile to any of these materials being included. Very few judges take their interpretive philosophy to quite this extreme, however. (and some have argued that not even Scalia consistently follwos his own rule.) So, then, what is a principled reason for allowing some non-binding material but not other such material? And, as Justice Breyer had previously queried in a discussion with Justice Scalia, does it really make sense that a Justice should be allowed to read such material but, even if it in all honesty affected how they approached the problem, they should not be allowed cite to it in their opinion?


Anonymous Anonymous said...

Ah Borgen's at it again... "much ado about very little" eh? ;-)

Here's Ginsburg once again proving she's a Scaleri of the Supreme Court; she absolutely does not get it. Her remarks display such a profound confusion I'm absolutely flabbergasted. That the foreign sources aren't binding is not the issue -- never has been, frankly, in my book. That judges can read foreign materials, or even the placemat puzzles at Denny's, is not the issue. Just don't use them to bolster your own opinion on the issue (unless you're reviewing a treaty, CIL or other interpretation that's part and parcel of the international community) by saying "oh, lookie, those countries over there disapprove/approve".
Her viewpoint of the constitution and the slipstreaming of all these other materials is a prescription for absolute lawlessness on the court. That the international community is "watching us" is absolutely immaterial; that other courts have learned from us is nice, but again, absolutely irrelevant regarding the interpretation of our statutes and constitution.

To answer Bryer via Borgen, as to whether "a Justice should be allowed to read such material but, . . . should not be allowed cite to it in their opinion," I say, read all you want -- but don't cite it if you expect the congress and people -- who, last time I checked are the actual bosses of this whole shooting match -- to continue to respect the Supreme Court.

4/04/2005 7:24 PM  
Blogger Chris Borgen said...

I'm not at it again... I never stopped. Anyway, regarding Anonymous' comments:

If your point is that you and some who agree with you lose "respect" for the court simply because they read and cite foreign law, my answer is that that's fine as a matter of politics but that is quite irrelevant as a matter of law. Judges tend not to cite or not cite things just so people can respect them; this isn't a popularity contest. They do it because (a) it is legally controlling or (b) it is the intellectually honest thing to do because the text has somehow influenced their thinking or (c) it exemplifies a similar result in a similar case. That is why you get cites to all sorts of non-binding sources from social science data to non-controlling court opinions. Are you saying none of this should ever be cited?

From your last paragraph, that seems to be what you would want: "read all you want--but don't cite it..." So you want to elevate "Don't ask; don't tell" into a judicial philosophy? I prefer our judges to be forthright about what they're referring to, even if it makes some people uncomfortable. At least then we get discussion, which is a good thing. Even if we disagree.

4/04/2005 8:12 PM  
Blogger Kirk H. Sowell said...

Assuming that a Justice is influenced by foriegn case law, I would presume that he cite it so we know this, but would prefer for Justices to have the integrity to stick to interpreting the U.S. Constitution rather than making up their own law. I would not accept a professed distinction between "binding" and "persuasive" authority because there is no way of knowing if the Justice is being truthful about this, either with himself or about us. Just stick to what genuinely is authority here.

I don't think that the analogy to a law professor's article will hold. The law review article, to the extent relevant to constitutional law, is relevant because it marshals evidence for a certain point of view being the correct one under the U.S. Constitution. This is why it is considered persuasive. And at least with a state court ruling, one could say that the state constitutions are so similar to the federal one that the substantive law likely is the same. No European court would ever claim this.

That said, there is certainly nothing wrong with us as Americans looking to European experience for insight. But this practice of relying on foreign authorities should be limited to elected representatives who can be turned out of office if they use this as an excuse to pursue an agenda contrary to the public's interests.

4/04/2005 9:06 PM  
Anonymous Anonymous said...

Here's an analogy: currently, in many circuits, I am allowed to read unpublished federal circuit-court opinions but not cite them to the judges who wrote them. The prohibition on citation is not to keep me from reading the opinions or being influenced by them. Rather, in adopting rules prohibiting citation to unpublished opinions, the judges not only mandated that such opinions should not be authoritative but also adopted a rule that directly prevents them from serving as authorities. The noncitation rule is enforced and communicated with special force by prohibiting citation.

Having litigated cases with unpublished opinions on point, I can attest that the parties generally felt that the ban on citation was much the most effective way of reducing the influence of unpublished opinons. (I have felt truly relieved and frustrated respectively when the non-citation rule ruled out citation to a damaging/helpful case.)

A rule that allowed citation (but provided admonitory caution that such opinions were wholly non-binding) would be much less effective. If the cases are not authoritative, why cite to them? Why not just copy out the argument? Everyone wants to cite to favorable unpublished opinions because they believe that (even formally acknowledging that they are "non authoritative") the citation to the opinion of a judge would be influential.

I think that people who oppose the citation of foreign judgements feel simply that such a noncitation rule would be a more effective mechanism of preventing them from exercising authority in cases were they shouldn't. Most U.S. federal circuit courts feel the same way about what is necessary to keep unpublished opinions from functioning as authorities. I don't think that this is an unreasonable view.

Eric Enlow

4/05/2005 6:15 AM  
Anonymous David said...

I am afraid that the commenters have gotten the better part of this exchange. If, as Justice Ginsburg says, these citations are non-binding and one supposes then, rather unimportant, then it seems quite silly for the left wing of the Supreme Court to undercut the legitimacy and influence of their opinions by citing to it.

Whether for good reason or not, the citation is controversial. If it is also non-binding, then why should the court expend precious political capital defending the practice? Perhaps the Court does not think political capital is important, but that is a foolish point of view. The Court derives it's legitimacy from other institutions and ultimately from the acceptance of the American people. It should not forget that fundamental fact, as it has in the past.

Even from the perspective of judicial politics, citing to foreign opinions is foolish. Most certainly, if the successors to liberal justices are conservative, then decisions which cite foreign precedent are likely to come to greater disfavor.

Finally, the citation to foreign sources is a great campaign issue for conservatives, especially when explaining the need for the so-called nuclear option. If the left wing of the Supreme Court is not concerned about the nuclear option, it should be. There is no more serious threat to its future influence on jurisprudence.

So, once again, one must ask, why is that left wing of the Supreme Court willing to risk so much for so little? Is this all the sake for intellectual honesty? That seems to be a little ridiculous. We all are, after all, Supreme Court justices included, shaped by countless influences to be enumerated. To be consistent, should Justice Thomas explain how his status as an African American affects his jurisprudence while Justice O'Connor explains how her experience as a legislator explains her jurisprudence while Justice Ginsburg explains how her experiences as a Jew influences her? After all, it seems that few factors are likely to have as much influence on a justice as issues of identity. Why we are at it, perhaps the justices should cite their childhood experiences. Justice Holmes, under this standard, most certainly should have included how the fighting in the civil war had a profound impact on his still influential philosophy of life and jurispruence. All in the name of intellectual honesty. It's non-binding and it certainly brings more insight into what are often the real reasons for judicial decisions than these citations to foreign precedent. Would that not be, much ado about nothing? Sure, such citations may rightly decrease the esteem and legitimacy of the court, but why should the court be concerned by the petty concept of political capital. After all, with enough hubris, one can believe that one's decisions do not need the cooperation of the other three branches of government or of the American people. Go ahead, give those pursuing the nuclear option in the Senate the rhetorical ammunition needed to change the Senate rules. It's worth it, since citing "non-binding" foreign precedent is "intellectually honest."

A final point. The idea that Supreme Court citations are non-binding is simply an illusion. In his brilliantly idiotic opinion in Roper, Kennedy insisted that citations to international opinion is only a non-binding "factor" in decision. This seems much the slippery slope. If one thinks about it, there are many so-called factors which are not generally binding. For example, the elements of the political question doctrine, as enunciate in Baker v. Carr could be considered to be merely non-binding factors as well. None of the factors, after all is either necessary or sufficient. Nonetheless, one can find countless cases where the case would have come out differently, but for one of these factors, when combined with other elements. In such a case, the factor is not really non-binding, but really, controlling.

Justice Kennedy calling citations to international law a factor DOES NOT make it non-binding. In certain cases, these citations will be, like other factors, controlling. Most certainly, that will sometimes be the case when judges are faced with a difficult decision, but find one sides (what should be irrelevant) briefing on international law more persuasive. One can imagine that tipping the balance in that case, and thus binding, in that case.

In other words, we should take absolutely no comfort in Justice Kennedy's slippery and illusory assertion that citations to international law are merely "non-binding" factors. It is illegitimate for international law, which was not consented to by the people in any sense, to govern decisions even in close Constitutional cases.

Either the Supreme Court's left wing is really rather foolish, in that it is expanding limited political capital for nothing, or it is entirely too devious, in trying to get the foot in the door to increase the influence of international law on U.S. law, even though international law (generally speaking) should not be influencing and in some cases controlling U.S. law since it was not created through legitimate political processes. (Fully ratified treaties, being an exception.)

Whether the left wing of the Supreme Court is merely being foolish or devious, its citations to international law should be rejected. Moderates, like myself, and those on the right should make a point of pointing out the illegitimacy of decisions citing international law (except when traditionally appropriate). Further, moderates like myself may have to face up to the reality that, though it is likely to produce a less moderate result in terms of appointments, the nuclear option may be the only realistic way to force the court to face the fact that it's legitimacy is ultimately derived from the people and that legitimacy is a scarce resource, which should not be taken for granted due to feelings of hubris that may be a by-product of lifetime tenure. Hopefully, future courts will learn from the lesson which needs to be conveyed to the current court. (Perhaps not. Courts, like the rest of us, do seem to periodically repeat the mistakes of the past, in this case forgetting the need for legitimacy. You would have thought that the lesson from Dred Scott would be enough. Sadly not.)

What this court needs is a little more democratic influence, which means accepting the nuclear option despite the result that a less moderate judiciary is sure to result. Better to have a democratically accountable judiciary that respects its limits than a more politically moderate, but less restrained judiciary that does not.

4/05/2005 10:52 AM  
Anonymous Anonymous said...

David's response sums up my viewpoint, so there's little need for me to respond at length. However, to answer Professor Borgen's questions:

>>If your point is that you and some who agree with you lose "respect" for the court simply because they read and cite foreign law, my answer is that that's fine as a matter of politics but that is quite irrelevant as a matter of law. <<

I couldn't disagree more. We have three branches of government, and to simply chant the mantra that the judicial branch is either uninfluenced by, or above politics is to deny reality. And denials of reality tend to ultimately lead one to uncomfortable places. I agree that as an abstract matter of interpretation the citation to foreign materials *may* not be worthy of the time and attention devoted to such ongoing examinations, but again, that's to fall into the trap Ginsburg has; namely, the ivory tower viewpoint. The judiciary's ONLY power is because the people ultimately CONSENT to abide by its rulings. Once the people no longer consent any and every theory of interpretation becomes meaningless. So, as David aptly noted, the judiciary ignores this issue at its own peril.

Secondly, Professor Borgen comments:

"I prefer our judges to be forthright about what they're referring to, even if it makes some people uncomfortable. At least then we get discussion, which is a good thing. Even if we disagree."

I prefer the discussion be unnecessary because judges would limit themselves to matters that rightly bear on their decisions when it comes to the interpretation of domestic law -- and that does not include foreign sources. ;-) But I, too, enjoy the discussion in the abstract.

4/05/2005 12:43 PM  
Anonymous Anonymous said...

From today's How Appealing:

"Justice Ruth Bader Ginsburg speaks on the role of international law in adjudication: Thanks much to the reader who managed to figure out that C-SPAN has made the video available at this link rtsp://
(RealPlayer required). Maybe my ears are failing me, but based on the recorded audio I could swear that Secretary of State Condoleezza Rice introduces Justice Ginsburg as 'one of our democracy's most disdained jurists.'"

4/05/2005 2:26 PM  
Anonymous Anonymous said...

From today's How Appealing:

"Justice Ruth Bader Ginsburg speaks on the role of international law in adjudication: Thanks much to the reader who managed to figure out that C-SPAN has made the video available at this link rtsp://
(RealPlayer required). Maybe my ears are failing me, but based on the recorded audio I could swear that Secretary of State Condoleezza Rice introduces Justice Ginsburg as 'one of our democracy's most disdained jurists.'"

4/05/2005 2:27 PM  
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