/ April 13, 2009

Justice Ginsburg Defends Using Foreign Courts as Persuasive Authority

Justice Ginsburg is not shy about making her case in public speeches, and she did just that at an Ohio State symposium honoring her 15 years on the bench.  Ginsburg argued that the Supreme Court is losing its relevance in the international community in failing to use international law as persuasive authority.  She went on that the Canadian Supreme Court is probably cited more often than the U.S. Supreme Court because “you will not be listened to if you don’t listen to others.”

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article from a professor,” asks Justice Ruth Bader Ginsburg.  She went on, “I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law.” 

At his confirmation hearing, Justice Roberts disagreed with Ginsburg’s position.  “If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge…And yet he’s playing a role in shaping the law that binds the people in this country.”

Justice Scalia’s dissent in Texas v. Johnson goes even further.  He calls the discussion of international law “meaningless” and “dangerous” because the opinion’s author (Justice Stevens) quoted only international law that supported his position  and because the court “should not impose foreign moods, fads, or fashions on Americans.”

In response, Ginsburg calls this opposition to considering foreign law a “passing phase.”

(Note: Justice Ginsburg made these comments at the Moritz College of Law at OSU.  The Washington Post reports that she made no mention of retiring from the bench.)

Source: ABA Journal

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