Legal News

?I Can Read What I Want,? Says Breyer on International-Law Debate

By Ashby Jones

If there are two broad philosophical differences among the Supreme Court justices these days, it might be these: 1) whether the Constitution be interpreted as it’s written or through the lens of our society’s evolving standards and mores and 2) whether justices are misguided to look to foreign rulings and the law of other countries when seeking guidance on cases.

On the second issue, which tends to get less airtime than the first, Justice Stephen Breyer on Thursday made some rather pointed remarks. Breyer, who’s long been okay with looking abroad for guidance (as opposed to, say, Justice Antonin Scalia), said the debate was interesting, but not all that meaningful. “When I do read things, I can read what I want,” Breyer said. Click here for the NLJ story; here for a story from the Associated Press.

Speaking on Thursday at SAIS — the School for Advanced International Studies at Johns Hopkins — Breyer said, in the words of the NLJ, that if “judges in another country with similar laws have a similar case, a judge should be able to consider how they solved it.”

Elucidated Breyer:

If I see something written by a man or a woman who has a job like mine in another country, and who is interpreting a document somewhat like mine and who in fact has a problem in front of the court somewhat like mine, why can’t I read it, see what they’ve done? I might learn something.

We understand that this is the American Constitution, but why can’t I read it? There are similar things. I do read it, and if I read it, why don’t I just refer to that fact? I know it isn’t binding, so what’s the problem? That’s my view.

It’s certainly not the view of Justice Scalia, who has articulated many times that he doesn’t think much of foreign law, at least not as a guide to how he should decide cases. In a speech in 2005, for example, Scalia said:

I do not use foreign law in the interpretation of the United States Constitution. . . . But apart from that, if you talk about using it [in regard to] constitutional law, you know, you talk about it’s nice to know that, you know, that we’re on the right track, that we have a same moral and legal framework as the rest of the world. But we don’t have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that we’re after is to, you know, do something that will be just like Europe, they would have been appalled. And if you read the Federalist Papers, it’s full of, you know, statements that make very clear they didn’t have a whole lot of respect for many of the rules in European countries.

Full post as published by Law Blog - WSJ.com on April 02, 2010 (boomark / email).