JUSTICE TAKES A HOLIDAY

Is the amusing title of Terry Eastland’s piece noting that five of the nine Justices of the US Supreme Court have taken off for Europe since the end of the session. Echoing comments I made earlier, he thinks they’d be better off hanging around the American heartland and getting in touch with reality:

Under our Constitution, the Supreme Court has the authority to determine whether legislative acts are constitutional. But such determinations require the court to figure out what a document framed and ratified by Americans means. It is odd to think that the interpretative task could include borrowing from the judgments of other courts to discern constitutional meaning. Moreover, it is “this constitution” that Article VI says “all judicial officers are “bound by oath or affirmation” to support.

In his dissent in Lawrence, Justice Antonin Scalia made the obvious point that “constitutional entitlements do not spring into existence, as the court seems to believe, because foreign nations decriminalized [homosexual] conduct.” The court’s discussion of “foreign views,” he added, is “meaningless” yet “dangerous” dicta.

Why “dangerous”? No doubt because Justice Scalia knows that no fewer than six justices–Stephen Breyer, Ruth Bader Ginsburg, Sandra Day O’Connor, David Souter and John Paul Stevens being the other five–are drawn to “foreign views” and someday could form a majority constitionalizing some foreign view or other. In which case the justices in that majority would have violated their oath.

While I find the European values argument rather specicious, the general point of the piece is worth considering.

(Hat tip: Howard Bashman)

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.