BUCKING FOR SANDY'S SEAT:

Judicial Tourism: What's wrong with the U.S. Supreme Court citing foreign law. (MARY ANN GLENDON, September 16, 2005, Opinion Journal)

What has been overlooked in these debates is the crucial difference between the legitimate use of foreign material as mere empirical evidence that legislation has a rational basis, and its use to buttress the court's own decision to override legislation. Take Lawrence v. Texas, the decision striking down criminal penalties for homosexual sodomy, where Justice Kennedy, joined by Justice Breyer, wrote, "The right petitioners seek . . . has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent." The remarkable implication is that it is up to our legislatures to justify a different view of human rights from that accepted elsewhere. This gives short shrift to the fundamental right of Americans to have a say in setting the conditions under which they live--the right that is at the very heart of our unique democratic experiment. Contrast the responsible use made of foreign law by Chief Justice William Rehnquist in Washington v. Glucksberg, to support Washington state's legislative prohibition of assisted suicide in an opinion noting that in "almost every state--indeed, in almost every western democracy--it is a crime to assist a suicide."

The importance of the distinction between these two modes of use cannot be exaggerated. It is not only a question of respecting the separation of powers. Those who believe the Washington legislature got it wrong can work to change the law through the ordinary democratic processes of persuasion and voting. But in the U.S., unlike in countries whose constitutions are easier to amend, the court's constitutional mistakes are exceedingly hard to correct. The unhealthy ripple effects of judicial adventurism are many: Legislatures are encouraged to punt controversial issues into the courts; political energy, lacking more constructive outlets, flows into litigation and the judicial selection process.

Few judges have understood the distinction between legitimate and problematic uses of secondary authorities so well as the late Henry Friendly, one of the most respected judges never to sit on the Supreme Court. In the 1970s, when judicial citation of social science materials was being hotly debated, Judge Friendly defended their use, but cautioned that when judges use social science or foreign material to substitute their own judgment for that of the legislature, their legitimacy is at its lowest ebb. For all who hope the next Supreme Court justice will possess interpretive skill and respect toward authoritative sources of law, it is an encouraging sign that John Roberts received his first lessons in judging as law clerk to Henry Friendly.

Rescrambling the betting pool...

Posted by Orrin Judd at September 16, 2005 4:53 PM