Scalia and Breyer Debate Use of Foreign Law Precedents

The Court Is Open for Discussion (WaPo, A01)

[A]t the American University Washington College of Law, where, for 90 remarkable minutes yesterday, Breyer and Scalia stepped out from behind the velvet curtain and argued legal issues in front of professors and students — and a national television audience watching on C-SPAN. It was the first time in recent memory that two sitting justices representing opposing factions on the court took their disagreements so completely public, and the effect was, at times, electrifying. The subject — whether the Supreme Court should consult the opinions of foreign courts in making its own interpretations of the U.S. Constitution — is a hot topic in constitutional law. But it was almost overshadowed by the spectacle of two legal heavyweights engaged in a sharp but civil intellectual slugfest.

The two men were a study not only in contrasting legal philosophies but also in contrasting personal styles. Scalia was characteristically intense, frequently shifting to the edge of his seat and punctuating his thoughts with brisk gesticulations. Breyer was all professorial cool, relaxing back into his easy chair and sipping spring water from a long-stemmed glass. They discussed in detail the opinions each had written in past cases; they crossed swords over basic questions such as the role of judges in a democratic society, and they competed to make the audience laugh.


The court has made use of foreign legal opinion to bolster its rulings in two major recent opinions, its 2002 decision to abolish the death penalty for the moderately mentally retarded and its 2003 decision to abolish state laws against private consensual sex between same-sex adults. Foreign views of the death penalty are expected to play a major role in a case the court is still working on this term, Roper v. Simmons, in which the issue is whether U.S. states may continue to sentence juvenile offenders to death — a practice all but abandoned in the rest of the world.

Breyer is perhaps the court’s leading advocate of the idea that the Supreme Court needs to take greater notice of the legal opinions abroad, making the argument yesterday that the goal is not to make foreign rulings binding on U.S. courts but rather to consider them as a source of information and analysis. “These are human beings called judges who have problems that are similar to our own,” he remarked. “Why don’t I read what he says if it is similar enough?”

Conservatives oppose the concept as an affront to U.S. sovereignty; Republicans have introduced legislation in Congress that would forbid judges to cite foreign case law. And Scalia has led the opposition on the court. “We don’t have the same moral and legal framework as the rest of the world and never have,” he said yesterday, adding that the framers of the U.S. Constitution “would be appalled” to see the document they wrote interpreted in light of the views of European courts. “What does the opinion of a wise Zimbabwean judge . . . have to do with what Americans believe,” Scalia asked Breyer, “unless you think it has been given to the courts” to make moral judgments that properly should be left to elected representatives. “Well, it’s relevant in this way,” Breyer replied. “They are human beings there, just as they are here. You’re trying to get a picture of how other people have dealt with it.” “Indulge your curiosity,” Scalia joked, “just don’t put it in your opinions.”

It’s a shame that the justices don’t do more of this. As long as the setting and tone are dignified, it is useful for the public to understand the issues involved and the complex intellectual formulations behind the Court’s decisions.

As to the issue at hand, I tend to side with Scalia–hardly a surprise–but am hardly passionate about the issue. Breyer is correct that, in matters of equity at least, the reasoning used by foreign judges might shed useful light. My view, though, is that these influences should have the same sort of weight as that of philosophers, academics, and similar thinkers. That is, they are legitimate to help ground issues but they are not precedents that have any legal force.

Update (1200): John Hinderacker has some more substantive discussion on the issue, drawing attention to a Breyer quote from the AP version of the story.

Breyer responded that international opinion can be relevant in determining fundamental freedoms in a more global society. “U.S. law is not handed down from on high even at the U.S. Supreme Court,” he said. “The law emerges from a conversation with judges, lawyers, professors and law students. … It’s what I call opening your eyes as to what’s going on elsewhere.”

John’s response to that (short form: “No mention of the language of the Constitution; no mention of statutes enacted by Congress or the state legislatures; no mention of American customs, traditions, or popular opinion.”) is well taken, although one could argue that a Justice inclined to make it up as he goes along could do so absent Zimbabwean precedents.

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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.


  1. ken says:

    James, it sounds like Sclalia is argueing for intentional ignorance. Bryer is saying that if they, the Supremes, were to read the decisions foriegn judges made on similear cases it might help inform their opinion. Scalia is saying that because it might inform their opinion they better not do it. His reason: because they are not American.

    Didn’t the Soviets have a similiar myopic view of everything foriegn?

  2. bryan says:

    From what I understood of the post, it seems that Breyer was saying that foreign opinions should be consulted as a basis for making a decision, and therefore working their precedents into American law. Scalia seemed to be saying it’s okay to look at other people’s opinions, but don’t cite them as any sort of basis for your judgement.

    Given the legal systems in other parts of the world (almost none of whom have a bill of rights to adjudicate), I think Scalia’s probably correct.

  3. jonathan says:

    Scalia is very specific. His statements bely a beleif in separate moral codes, american versus unamerican (USA versus the rest of the world). Scalia’s stance is close-minded and elitist.