Wash Post Gives Justice Ginsburg a Hard Time on Reliance on Foreign Law

The paper at least gives her a harder time than I would have expected.

IN A SPEECH last month at the Constitutional Court of South Africa, Justice Ruth Bader Ginsburg made some unfair insinuations about critics of the use of foreign law in American courts. . . . To hear Justice Ginsburg describe the matter, you'd think the use of foreign law presents an easy question, legally and morally. In her speech, she quoted language from Chief Justice Roger Taney's infamous Dred Scott decision that rejected the notion that European opinions ought to guide American understanding of the Constitution. She went on to note that South Africa under apartheid also rejected the influence of foreign law, while its 1996 constitution explicitly invites its consideration. And she attacked members of Congress for introducing bills to eliminate the use of foreign precedents in American judicial decisions. Such legislation, she suggested, was responsible for an incident in which someone posted a call on the Internet for her and then-Justice Sandra Day O'Connor to be assassinated. . . . We agree with Justice Ginsburg and the court majority that American courts need not pretend that foreign courts do not exist. . . . . Justice Antonin Scalia offers some reasonable criticisms of how the court has used foreign precedents -- that is, selectively, when foreign law supports results that the court cannot justify based on American authorities alone. As Justice Scalia points out, justices cite foreign precedents in capital cases, where European law is far more liberal than American law, but not in abortion cases, where it is more restrictive.