Justice Scalia, who last year went toCroatia

Law.com 
Foreign Matter
July 8, 2:00 am ET
Tony Mauro, Legal Times

Even though the Supreme Court has adjourned for the summer, a majority of the justices will be under the same roof later this week -- not in Washington, D.C., but at the Villa la Pietra in Florence, Italy.

ADVERTISEMENTJustices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O'Connor and Clarence Thomas are set to meet Wednesday through Friday with European judges and scholars to discuss the new European Constitution. And most of those five justices are also making other trips this summer to locales such as Luxembourg, Paris and Salzburg.

In short, another typical summer of international travel for the modern day Supreme Court. But the justices' wanderlust has taken on extra significance in light of the Court's newfound interest in invoking the rulings and views of foreign courts and international authorities in its own jurisprudence.

In the two decisions on domestic hot-button issues last month -- Lawrence v. Texas, on gay rights, and Grutter v. Bollinger, on affirmative action -- some of the justices surprised many scholars by looking beyond U.S. borders for precedential support.

Justice Kennedy, writing for the majority in Lawrence, cited a 1957 report to the British Parliament and a 1981 ruling of the European Court of Human Rights to make the point that opposition to gay rights was neither long-standing nor universal. In the first sentence of her concurring opinion in Grutter, Justice Ginsburg invoked an international pact on combating discrimination as proof of an "international understanding" that affirmative action should not last forever.

Those references may not seem like a lot. But to international law experts who have spent years urging the Court -- largely without success -- to take a more global view in its rulings, they were a very big deal -- and could foreshadow more to come.

"This was a breakthrough term. The veil has been lifted. The ostrich's head came out of the sand," says Yale Law School professor Harold Koh, a former Supreme Court law clerk and assistant secretary of state for human rights in the Clinton administration. "And it is a function, really, of how much they travel."

The trend toward citing foreign precedents is more than a high court oddity. It has provoked a sharp doctrinal debate inside the Court and in academia, and has political dimensions outside the Court as well -- exemplified by the fact that the practice is opposed by Justices Thomas and Antonin Scalia, and by Jack Goldsmith III, President George W. Bush's nominee to head the Office of Legal Counsel at the Department of Justice. Goldsmith, whose Senate Judiciary Committee confirmation hearing is set for today, may play a key role in upcoming cases involving the detention of terrorist suspects and aliens. The role of foreign court precedents could be an issue.

"Once you rely too heavily on foreign courts the question arises: Is the Court setting social policy, or is it interpreting our Constitution?" says University of Virginia law professor Curtis Bradley, co-author with Goldsmith of law review articles criticizing the use of international law.

Bradley, too, ascribes the Court's interest in foreign law to the Court's heavy diet of international travel. "The more the justices travel abroad and the more interactions they have, the more references like these you'll get, the more cosmopolitan a lens they will look through."

On their trips overseas, the justices learn much that helps explain their new internationalism, according to Koh and others. For one thing, they find out that foreign courts and their judges are mature, sophisticated counterparts grappling with many of the same issues the justices face back home. Affirmative action and gay rights, for example, have been before courts from India to South Africa for years. On human rights issues such as the death penalty, foreign courts have often debated -- and disposed of -- questions that the U.S. Supreme Court is still dealing with in its incremental style.

A case in point is last year's high court decision in Atkins v. Virginia, the other recent ruling cited by Koh and others.

In Atkins, Justice John Paul Stevens observed in a footnote that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." By a 6-3 vote, the Court joined that disapproval.

Which points up another lesson justices have seen in their travels: The U.S. Supreme Court is no longer viewed worldwide as a beacon or trailblazer on civil and individual rights.

For example, Koh says, the European Court of Human Rights is "eight cases beyond Lawrence" in developing gay rights doctrine. Courts from South Africa to Canada have gone further on the gay marriage issue than the Supreme Court is likely to for years.

At a personal level, too, the justices no longer find they are as exalted or revered as Supreme Court justices once were when they headed to overseas meetings.

At an American Bar Association convention in London three years ago, O'Connor had to fight for a seat in the audience at a panel discussion, while on the stage, Kennedy was asked why the Supreme Court ignores international legal trends. His unpopular answer: Foreign courts are too "remote" and "unknown" for the American public to accept. A noted London barrister pointedly told Kennedy, "Your system is quite certain it has nothing much to learn from us."

Now, as evidenced by Lawrence, Kennedy appears to be a convert. His reference to the European human rights court June 26 was the first in Supreme Court history to appear in the text of a decision rather than a footnote, according to Koh.

O'Connor, too, has become an enthusiastic proponent of the view that U.S. judges can learn from the work of international and foreign tribunals. She is an active participant in an American Society of International Law (ASIL) program that seeks to educate U.S. judges about international developments. "Because of the scope of the problems that we face, understanding international law is no longer just a legal specialty," O'Connor said at the society's 2002 meeting. "It is becoming a duty."

O'Connor this spring accepted an assignment from President Bush to lead a conference in Bahrain later this year on judicial reform in the Middle East.

Oddly, though, O'Connor did not cite international decisions in her own majority in Grutter last week -- possibly an omission made to hold her majority.

Earlier this year, Breyer told ASIL, "I have found discussions with foreign judges increasingly valuable" on institutional matters, and he quoted Ginsburg as saying, "We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups." Stevens and David Souter are also counted in the camp of justices who are sympathetic to the trend, though neither seems to hit the international circuit with much regularity.

By the same token, not all of the world-traveling justices have come back eager to incorporate international trends into their writing.

Justice Scalia, who last year went to China, Croatia, Switzerland and Austria, according to his financial disclosure form, is the most vehement opponent of the Court's use of international precedents. In Atkins, the death penalty case last term, Scalia said the views of the world community were "irrelevant." In his dissent in Lawrence, Scalia dismissed the majority's discussion of foreign views as "dangerous dicta." He also quoted Justice Thomas' statement in a 2002 decision that the Court "should not impose foreign moods, fads, or fashions on Americans."

Chief Justice William Rehnquist, for his part, has remained relatively silent on the trend. He also frequently travels and teaches in Europe during the recess, though one of his frequent destinations, Innsbruck, Austria, is off the list this summer. The St. Mary's University School of Law's Innsbruck program, his host, announced last month that Rehnquist had canceled his appearance this summer on the recommendation of his doctor because of his knee surgery late last year.

Virginia law professor Bradley thinks Scalia and Thomas are right to be concerned about the practice. "When you pick out a couple of cases from foreign courts, how do you know you are getting a good sense of an international trend?" he asks.

Bradley also asserts the trend could backfire for those who hope it will bring more progressive rulings from the Court. In some areas of the law -- freedom of speech and of the press, most notably -- foreign courts are often far behind the U.S. high court's usually expansive understanding of the First Amendment. "How much you like this trend is affected by which issue you are talking about," Bradley notes.

Yale's Koh thinks the Court's actions last month will be a signal to future litigants that they need not be shy about adding foreign citations to their briefs. He sees a potential danger in overdoing it, however.

In cases that stem from the post-Sept. 11 detentions of aliens and enemy combatants, for example, Koh says it will be appropriate and useful for those who oppose the Bush administration's actions to cite at least some international precedents.

But those foreign views, Koh adds, may be overshadowed by national security arguments on the government side. So Koh worries that if government opponents rely too heavily on foreign precedents and then lose, their use may become a scapegoat for defeat. "The Court might just blow off those [international] cases," he says, "and the progress we've made this term will be undone."

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