SCOTUS Perspectives

[Annie]

High court justices hold rare public debate

Fri Jan 14, 6:26 AM ET

By Joan Biskupic, USA TODAY

Shed of their black robes, Supreme Court Justices Antonin Scalia (news - web sites) and Stephen Breyer (news - web sites) engaged in a lively and, at times, amusing debate Thursday over whether foreign court rulings should be used in U.S. decisions.

"We don't have the same moral and legal framework as the rest of the world, and we never have," said Scalia, who is one of the strongest voices on the high court against looking to foreign rulings to decide American cases.


Breyer countered, "You can learn something" from foreign countries. He said it is a matter of "opening your eyes to things that are going on elsewhere." He said he does not consider foreign decisions "determinative" but "simply, from time to time, relevant."


Sitting in upholstered chairs in the well of an American University auditorium, the two justices laid out their views in a rare public session. Their conversation was moderated by New York University law professor Norman Dorsen and co-sponsored by the U.S. Association of Constitutional Law and American University.


Supreme Court justices increasingly have referred to foreign law but not without dissent in their own ranks or public controversy. In 2003, when the majority struck down state anti-sodomy laws, it mentioned that the European Court of Human Rights has affirmed the right of homosexual adults to engage in sexual conduct. A year earlier, when the majority barred the execution of mentally retarded convicts, it noted that "within the world community" such executions are "overwhelmingly disapproved."


Some members of Congress have denounced such references. Last year, Rep. Tom Feeney (news, bio, voting record), R-Fla., introduced a resolution criticizing the court for citing foreign legal authority. The resolution drew several co-sponsors but was not adopted by the full House. Shannon Conklin, a spokeswoman for Feeney, said Thursday that he intends to reintroduce the resolution.


Scalia and Breyer, both former law professors, appeared to relish expounding on their competing approaches. "I'm not preventing you from reading these cases," Scalia said, "just don't put it in your opinions."


Scalia, who dissented from the gay rights and death penalty decisions, argued that the danger of foreign law is that it can be taken out of its native soil context or used only when it helps a position. "We are one of only six countries in the world that allows abortion on demand prior to viability," he said, noting that the Supreme Court majority has not been guided by that. "Do we just use foreign law selectively?"


Scalia, who was appointed in 1986 by President Reagan, emphasized that judges should decide cases based solely on the U.S. Constitution and its 18th-century context.


Breyer, who was named to the bench by President Clinton (news - web sites) in 1994, argued that judges can draw guidance - not hard rules - from foreign sources. He observed that the Supreme Court increasingly is faced with international problems, from global antitrust disputes to terrorism. "Those are the cases we're getting. And that reflects the truth about the world."


There were many moments of levity between the two justices during the hour-and-a-half session that also was broadcast by C-SPAN.


Breyer quipped at one point that he usually goes about his life unrecognized. He said that the few times people have asked him if he was on the Supreme Court, they thought he was Justice David Souter (news - web sites).


Chimed in Scalia, "And he went along with it!"

 

[manu1959]

"Scalia, who was appointed in 1986 by President Reagan, emphasized that judges should decide cases based solely on the U.S. Constitution and its 18th-century context."

this concerns me.....context is important but should be determinative

 

[Merlin1047]

"Scalia, who was appointed in 1986 by President Reagan, emphasized that judges should decide cases based solely on the U.S. Constitution and its 18th-century context."

this concerns me.....context is important but should be determinative

The charter of the Supreme Court is to make decisions in regard to constitutionality. Period.

There is not now, nor has there ever been a basis for SCOTUS justices to broaden their references to any other documents other than the Constitution of the United States. Breyer does not have the authority to expand his references simply on his personal whim. By referencing other sources Breyer takes the path of all liberal judges who seek to amass more and more power to the judiciary by making rulings based not on law, but on their view of society. In Breyer's case, he seeks to make law based on his world view. That is nothing short of outrageous. He should be removed from the bench. And he should have his ass kicked for good measure.

 

[musicman]

I'd like to volunteer for the job of kicking Breyer's ass.

 

[ScreamingEagle]

Summing up this judicial debate:

Conservative Supreme Court Justice Scalia: I base my decisions on the U.S. Constitution.

Liberal Supreme Court Justice Breyer: I base my decisions on foreign law and other world opinions.

Isn't Breyer's approach grounds for impeachment?

 

[pegwinn]

: "Scalia, who was appointed in 1986 by President Reagan, emphasized that judges should decide cases based solely on the U.S. Constitution and its 18th-century context."

this concerns me.....context is important but should be determinative .

The charter of the Supreme Court is to make decisions in regard to constitutionality. Period.

There is not now, nor has there ever been a basis for SCOTUS justices to broaden their references to any other documents other than the Constitution of the United States. Breyer does not have the authority to expand his references simply on his personal whim. By referencing other sources Breyer takes the path of all liberal judges who seek to amass more and more power to the judiciary by making rulings based not on law, but on their view of society. In Breyer's case, he seeks to make law based on his world view. That is nothing short of outrageous. He should be removed from the bench. And he should have his ass kicked for good measure.

Bad news is that Breyer does have the authority. It's the same authority that the other justices and the circut courts have. Each can interpret the law and the USC to death and have a law clerk write the opinion. The only balance is that he is but one vote on the bench. I wish they were required to source and justify the opinions. Even if no one can overrule them, at least we could raise the bs flag.

 

[Merlin1047]

Bad news is that Breyer does have the authority. It's the same authority that the other justices and the circut courts have.

Sorry, can't agree. The Constitution spells out those sources of law which the Supreme Court may consider when making a ruling. The Supreme Court does NOT have the authority to go outside those Constitutional restrictions.

There's a fairly good article on the subject at the link below from which I extracted the following:

http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Structure_and_powers

Section 2:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (...)
================================================

Breyer suggests that he has the authority to consider foreign law and apply it whenever he sees fit. That's baloney. If the court is considering a case which involves treaties, maritime law or the litigants are ambassadors, then it is authorized to avail itself of the appropriate documents in order to rule on that specific case. They are definitely not allowed to use foreign law when deciding a case which has as its basis the Constitution of the United States.

The Supreme Court does not now, nor has it ever had the authority to amend the Constitution. By his effort to apply foreign law, Breyer is attempting to do exactly that in a typically sneaky liberal way. He figures that if he cannot find support for his lib views within the American Constitution, he will back-door the effort and get his references wherever he chooses.

"You can learn something" from foreign countries. He said it is a matter of "opening your eyes to things that are going on elsewhere." He said he does not consider foreign decisions "determinative" but "simply, from time to time, relevant." That statement is simply outrageous. Yes, perhaps we can learn something from foreign governments, but that is not up to Breyer and the court to determine. That is up to the people.

The people have entrusted the Supreme Court with the Constitution of the United States. It is the court's job to apply and interpret the Constitution, not to modify it by changing it's text or by importing concepts from foreign courts or countries. Breyer's attitudes are a clear indicator that either he fails to understand the charter of the court or that he places his personal whims above his sworn duty.

In either case, it amounts to malfeasance and the bastard should have his slimy ass kicked to the curb. It is well past time that we the people demand accountability from not only our elected leaders, but from judges as well.

 

[pegwinn]

Sorry, can't agree. The Constitution spells out those sources of law which the Supreme Court may consider when making a ruling. The Supreme Court does NOT have the authority to go outside those Constitutional restrictions.

There's a fairly good article on the subject at the link below from which I extracted the following:

<snip>

The people have entrusted the Supreme Court with the Constitution of the United States. It is the court's job to apply and interpret the Constitution, not to modify it by changing it's text or by importing concepts from foreign courts or countries. Breyer's attitudes are a clear indicator that either he fails to understand the charter of the court or that he places his personal whims above his sworn duty.

In either case, it amounts to malfeasance and the bastard should have his slimy ass kicked to the curb. It is well past time that we the people demand accountability from not only our elected leaders, but from judges as well.

Actually I agree with you to the degree that we could sit down and drink beer and hammer out a working arraingement. But I think you are arguing what should happen and I am arguing what does happen. I believe that Justice B, along with a significant percentage of appellate or circut court judges, are already considering foriegn precedent and wiggling it into opinions. Thats the only possible way they could use the "living document" bs IRT the constitution. I absolutly agree that we should hold all elected or appointed officials accountable. In fact I agree so well that I will buy the first beer. But we couldn't try a lying president when the proof was there. I don't see removal of a supreme since we have no proof other than circumstantial.

 

[Annie]

By the very nature of how the Founders wrote Article 3, it was bound to expand:

Article III.

Section. 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.​

That's it, the whole thing. It's the reason Marbury v Madison obviously came about while many of them were still alive, establishing 'Judicial Review' a power that is NOT enumerated.

 

[Annie]

Old thread, but new perspective by WSJ editorial and how these 'philosophies' discussed earlier have practical repercussions:

http://www.opinionjournal.com/editorial/feature.html?id=110006348

Rule of (International) Law
Can foreign courts tell American ones how to do their job?

Saturday, February 26, 2005 12:01 a.m.

One of the more dangerous fads in Supreme Court jurisprudence of late is something called "international law," in which American laws are measured not just against the Constitution but against the laws of foreign countries. The purpose is to put the U.S. law in what supporters delicately call a "global context." What they really mean is that they can't persuade enough Americans of their views to change U.S. law so they want to persuade judges to do it for them.

Among the most ardent supporters of this view are opponents (here and abroad) of the death penalty, who argue that capital punishment violates international norms. In the juvenile death-penalty case it heard last fall, the Supreme Court took the unusual step of permitting friend-of-the-court briefs from 48 foreign governments and such renowned jurists as Mikhail Gorbachev and the Dalai Lama. (Naturally, they all opposed it.)

Which brings us to Medellin v. Dretke, a death penalty-related case that the Supreme Court will hear next month and which has the potential to catapult the concept of international law to a new level of acceptability in American courts. At issue is whether an order issued by the International Court of Justice at The Hague must be enforced by a court in Texas. That is, the "supreme" court of the United States would reside in the Netherlands, not the District of Columbia.

José Medellin is a Mexican citizen on death row in Texas. He was convicted in state court in 1994 of murdering two teenage girls and sentenced to death. The Texas Court of Criminal Appeals upheld his conviction and sentence in 1997.

A few months later the Mexican consular authorities in the U.S. learned about Medellin's plight for the first time. They eventually took his case to the International Court of Justice, arguing that under the Vienna Convention they should have been notified when Medellin was first arrested. The ICJ ruled in Mexico's favor and ordered U.S. state courts to review the death sentences of Medellin and 50 other Mexican citizens held on death row in this country.

At first blush, the ICJ ruling seems entirely reasonable. The U.S. is a signatory to the Vienna Convention, which everyone agrees serves American interests; if an American citizen is arrested abroad, the U.S. wants to know about it. Nor does the U.S. dispute the facts of the case. It has apologized, promises to do a better job of keeping its treaty commitment, and has launched an education campaign on the Vienna Convention for state law-enforcement authorities.

The danger here lies in the remedy. Letting the ICJ tell Texas how to run its courts would move the U.S. in the direction of the European Union, which has a supernational legal system to which national courts must bow. Not far down the line would be an ICJ ruling declaring the death penalty illegal and ordering Texas to get rid of capital punishment.

The U.S. brief in Medellin is due Monday, and we hear there's a battle royal between the State Department, which doesn't want to upset Europeans who support the ICJ (and hate the death penalty), and the Solicitor General's office, which understands the legal principles at stake. At the ICJ, the Bush Administration argued that Mexico's demand would be an "unwarranted intrusion" on U.S. sovereignty. That's still the correct position.

 

[CivilLiberty]

That's it, the whole thing. It's the reason Marbury v Madison obviously came about while many of them were still alive, establishing 'Judicial Review' a power that is NOT enumerated.

Judicial review is clearly implied by:

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority"



A

 

[Annie]

Judicial review is clearly implied by:

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority"



A

and we didn't join any treaties for the ICC.

 

[Yurt]

SCOTUS, in it's early years, often used legal precedence from England. Afterall, our legal system was created and molded after the english common law. That is why you see many early cases that cite english cases.

However, we have a many years behind our judiciary. We have many cases that have been decided based solely on American jurisprudence. I therefore disagree with Breyer's approach, because we have enough law to use solely american jurisprudence.

 

[Annie]

High court justices hold rare public debate

Fri Jan 14, 6:26 AM ET

By Joan Biskupic, USA TODAY

Shed of their black robes, Supreme Court Justices Antonin Scalia (news - web sites) and Stephen Breyer (news - web sites) engaged in a lively and, at times, amusing debate Thursday over whether foreign court rulings should be used in U.S. decisions.

"We don't have the same moral and legal framework as the rest of the world, and we never have," said Scalia, who is one of the strongest voices on the high court against looking to foreign rulings to decide American cases.


Breyer countered, "You can learn something" from foreign countries. He said it is a matter of "opening your eyes to things that are going on elsewhere." He said he does not consider foreign decisions "determinative" but "simply, from time to time, relevant."


Sitting in upholstered chairs in the well of an American University auditorium, the two justices laid out their views in a rare public session. Their conversation was moderated by New York University law professor Norman Dorsen and co-sponsored by the U.S. Association of Constitutional Law and American University.


Supreme Court justices increasingly have referred to foreign law but not without dissent in their own ranks or public controversy. In 2003, when the majority struck down state anti-sodomy laws, it mentioned that the European Court of Human Rights has affirmed the right of homosexual adults to engage in sexual conduct. A year earlier, when the majority barred the execution of mentally retarded convicts, it noted that "within the world community" such executions are "overwhelmingly disapproved."


Some members of Congress have denounced such references. Last year, Rep. Tom Feeney (news, bio, voting record), R-Fla., introduced a resolution criticizing the court for citing foreign legal authority. The resolution drew several co-sponsors but was not adopted by the full House. Shannon Conklin, a spokeswoman for Feeney, said Thursday that he intends to reintroduce the resolution.


Scalia and Breyer, both former law professors, appeared to relish expounding on their competing approaches. "I'm not preventing you from reading these cases," Scalia said, "just don't put it in your opinions."


Scalia, who dissented from the gay rights and death penalty decisions, argued that the danger of foreign law is that it can be taken out of its native soil context or used only when it helps a position. "We are one of only six countries in the world that allows abortion on demand prior to viability," he said, noting that the Supreme Court majority has not been guided by that. "Do we just use foreign law selectively?"


Scalia, who was appointed in 1986 by President Reagan, emphasized that judges should decide cases based solely on the U.S. Constitution and its 18th-century context.


Breyer, who was named to the bench by President Clinton (news - web sites) in 1994, argued that judges can draw guidance - not hard rules - from foreign sources. He observed that the Supreme Court increasingly is faced with international problems, from global antitrust disputes to terrorism. "Those are the cases we're getting. And that reflects the truth about the world."


There were many moments of levity between the two justices during the hour-and-a-half session that also was broadcast by C-SPAN.


Breyer quipped at one point that he usually goes about his life unrecognized. He said that the few times people have asked him if he was on the Supreme Court, they thought he was Justice David Souter (news - web sites).


Chimed in Scalia, "And he went along with it!"

Now that the SCOTUS have invoked 'international norms' in a majority decision, this just seems appropriate:

http://iowahawk.typepad.com/iowahawk/2005/03/court_backs_3ox.html

Court Backs 3-Oxen Dowries
WASHINGTON, DC - In a far-reaching decision that will likely create complicated consequences for the American livestock and wedding-planning industries, the Supreme Court this morning ruled 5-4 that all US marriage dowries "must include three non-diseased oxen."

Writing for the majority, Justice Anthony Kennedy cited "the weight of the expansive penumbra surrounding the historically emerging and prevailing opinions of tribal shamans from Lesotho to Myanamar" in issuing the historic ruling in American Cattleman Association vs. Modern Bride, Helverson, et al.

In a scathing and sometimes caustic dissent, Judge Antonin Scalia wrote that "Holy. Freakin'. Shit."

The American Civil Liberties Union, which had filed an amicus brief in the case, praised the decision as "an important first step in insuring that American grooms will eventually share the same access to bovine property rights as the rest of the international community."

"The decision underscores the principle of Federalism by creating uniformity in our notoriously inconsistent state dowry laws," noted Harvard Law professor Lawrence Tribe. "For example, Iowa grooms are entitled to $300 and a two-night honeymoon trip to the Wisconsin Dells, while just across the border in Missouri, grooms only get $200 and a set of air shocks for their TransAm. Thankfully, the Court has brought some sanity to the situation."

Besides expanding the rights of male clanspeople in dowry disputes, the sweeping 600 page Supreme Court opinion clarified U.S. law across a broad spectrum of civil, economic and traffic codes. Among the highlights:

Citing EU and Belgian case law, the Court declared that signage on U.S. Interstate Highways must be translated to both French and Flemish by 2007.

The Court also reconciled a number of conflicting Japanese/US traffic standards, ruling that starting Friday, motorists may drive on either side of American roads.

In another civil finding, the Court noted prevailing Nepalese-Canadian-Yemeni standards in opening the way for legalized stonings at arranged gay marriages.

The ruling overturned a 7th Circuit decision by declaring "The First Rule of Fight Club" unconstitutional on First Amendment grounds.

By a 5-4 margin, it reversed death sentences for prisoners convicted of crimes committed while juveniles; however, the Court ruled that states may voluntarily terminate prisoners as "extremely late-term abortions" under Roe v. Wade.

Overturning a previous decision by a European panel, the Court declared Associate Justice Ruth Bader Ginsberg winner of the 2003 Eurovision Song Contest.

In a surprise finding, the Court ruled itself unconstitional; but, citing the tradition of international courts ignoring US court rulings, said that this ruling itself was unconstitutional.

Attorneys for defendant John Helverson said their client "would make a good faith effort" to comply with the decision, and said he was already constructing an oxen feedlot in the back yard of his Glendale, CA home in anticipation of the May wedding of his daughter Ashley, 25.

"Though we are disappointed, we and Mr. Helverson respect the Court's decision," said attorney Mark Epstein. "With another case under review, we can't afford a contempt citation."

In a related case, the Court is expected to rule sometime in late March whether Ashley Helverson and fiance Jason Garcia can be extradited to Saudi Arabia to face the death penalty for fornication.