Should US judges consider foreign law?

Fitting with the latest discussions surrounding President Obama’s appointment of Harold Koh as the next Legal Adviser, who quickly was accused of being a ‘transnationalist’ who wants to sell out the US constitution to international law (see our earlier report), Justice Ruth Bader Ginsburg recently made some comments on the suitable influence of foreign law on the US Supreme Court. During a symposium in honor of her 15 years as a Justice at the Supreme Court held at Moritz College of Law with the Ohio State University, she inter alia made the following remark: “I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law.” According to Justice Ginsburg the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds. She went on to state: “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 written by a professor?”

Several bloggers were quick to criticize her for the remarks. For example, Don Surber on DailyMail.com responded the following:

Having foreign laws guide American law is unconstitutional. Congress makes law. Period. Presidents sign it (or not in the case of an over-ridden veto) and courts interpret them. The justices are wrong in following foreign law — or even referring to them (with the exceptions being the Magna Carte and British common law).

I don’t quite understand why it would be unconstitutional to have foreign laws (among other sources) guide a judge in his/her decision making. Indeed it would surprise me if any constitution would dare to prescribe what sources a judge is allowed or not allowed to take into account when making up his/her mind in a particular case before the bench. The issue of whether or not a decision should solily or mainly be allowed to be based upon foreign (or international) law, i.e. if foreign law should be part of the underlying rationale of a court’s decision, is certainly a different matter and subject to the general approach of the legal thinking and the legal traditions in a particular country.

Justice Ginsburg is a member of the Supreme Court’s liberal minority and her more conservative colleagues such as Chief Justice John G. Roberts Jr., Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas oppose the citation of foreign law in constitutional cases.