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Scalia to Congress: Butt Out of Court's Use of Foreign Law
By David G. Savage, Los Angeles Times Staff Writer
May 19, 2006
WASHINGTON — Justice Antonin Scalia said Thursday he was strongly opposed to using foreign law to decide constitutional cases in the Supreme Court but also was opposed to having Congress outlaw the practice.
"I don't think it's any of your business…. Let us make our mistakes, just as we let you make yours," he told a luncheon audience that included several members of Congress at a public policy forum on Capitol Hill.
Scalia is a conservative and a believer in the independence of the courts.
His oft-stated skepticism about the role of foreign laws has been taken up by a group of House Republicans, who introduced a measure saying legal decisions interpreting the Constitution "should not be based on judgments, law or pronouncements of foreign institutions."
Scalia said Thursday he did not welcome the intervention. He told the lawmakers that he did not think the justices should second-guess how Congress makes it decisions. The same applies in reverse, he added.
"No one is more opposed to using foreign law than I am, but I'm darned if I think it's up to Congress to direct the Supreme Court how to make its decisions," he said.
Scalia, the first Italian American to sit on the high court, was speaking before an appreciative audience: the National Italian American Foundation. It gathered in the Gold Room of the Rayburn House Office Building.
It was a tame performance for Scalia.
A former law professor and one of the court's leading intellects, he travels widely and speaks regularly on the law. Sometimes his appearances gain attention less for his considered legal views than for his combative off-the-cuff comments and gestures.
In February, he said only "idiots" would believe the Constitution must change with society. Several of his colleagues are on record as saying the Constitution should indeed change with society.
In March, he said it was "crazy" to believe foreigners captured in a war are entitled to a full jury trial.
That was a couple of weeks before the Supreme Court took up such a case.
Also in March, he set off a minor flap in Boston when he was caught on camera giving a dismissive — some said vulgar — fingers-under-the-chin gesture to a reporter who asked him a question as he left church.
"That's Sicilian," he explained.
On Thursday, Scalia stuck to a familiar legal topic, albeit one that has divided the high court and much of the nation's legal community.
The issue is whether the justices should consider the opinions of foreign courts in deciding cases under the U.S. Constitution.
The question has been caught up in the culture wars over gays, abortion, religion and the death penalty.
In recent years, four of Scalia's colleagues — Justices Ruth Bader Ginsburg, John Paul Stevens, Stephen G. Breyer and Anthony M. Kennedy — have given speeches saying the opinions of foreign courts should influence U.S. legal thinking though outside views are not decisive.
Three years ago, when the Supreme Court struck down as unconstitutional a Texas law that made private sex between gay adults a crime, the majority noted in passing that the European Court of Human Rights had come to a similar conclusion two decades earlier.
Two years ago, the court struck down state laws that permitted the death penalty for murderers younger than 18. Kennedy noted that the United States stood nearly alone in condemning juvenile killers to death.
Scalia dissented sharply in both cases, faulting the majority for following the view of "like-minded foreigners" and repeating his view that the Constitution "means just what it meant when it was adopted."
"I'm not some yahoo, a hater of all things foreign," Scalia said Thursday.
"I'm a friend of foreign law" in cases involving treaties or trade compacts between nations, he said, "but not when it comes to determining the meaning of the U.S. Constitution."
The newest justice — and fellow Italian American Samuel A. Alito Jr. — came to hear Scalia on Thursday. Alito told senators earlier this year that he opposed relying on foreign court rulings in the Supreme Court.
Last year, Ginsburg said U.S. judges should "learn what we can from the experience and good thinking [that] foreign sources may convey."
The opposition to foreign opinions "has a certain kinship to the view that the U.S. Constitution is a document essentially frozen in time as of the date of its ratification," Ginsburg added in an obvious dig at Scalia.
Scalia: Keep Foreign Law Out of Decisions
By PETE YOST, Associated Press Writer
Thursday, May 18, 2006
Firing the latest round in a debate with his Supreme Court colleagues, Justice Antonin Scalia on Thursday decried the use of foreign law in interpreting the U.S. Constitution on issues ranging from the death penalty to homosexual rights.
"I do believe that there's a moral law ... but I don't believe that judges have been charged with deciding it," Scalia said in a speech on Capitol Hill.
Scalia criticized the court's use of foreign law in a decision striking down a Texas statute that made gay sex a crime, a ruling in which he strongly dissented.
In a 2005 ruling in which Scalia also was in the minority, justices outlawed the death penalty for juvenile killers, citing in part international sentiment against it.
Judges around the world have come to believe they are charged with deciding "the most profound moral questions," Scalia said. "Should there be the death penalty? Should there be a right to abortion? Should homosexual conduct be proscribed?"
"If you believe that, of course you are going to cite the Court of Human Rights in Strasbourg, because those guys wear robes just as you do," said Scalia. "And therefore they also have been charged with determining the most profound moral questions of mankind."
Scalia's made his remarks to a Capitol Hill audience that included Samuel Alito, the court's newest justice, and about a dozen members of Congress.
Of those he feels lean too heavily on foreign law, Scalia asked rhetorically, what authority can be cited when a court that says constitutional law which "used to say one thing now says something else?"
"You have to make noises like a lawyer, right?" Scalia said. "Here's an opinion of a foreign court. It looks like a real legal opinion, so and so versus so and so, 33 Uganda 251." He said that "one of the worst aspects of using foreign law for deciding our constitutional questions is that it is so manipulable."
Scalia appears to have gotten some recent support for his views. At his confirmation hearing, Chief Justice John Roberts stated his opposition to the use of foreign law in rendering U.S. court decisions.
The issue of foreign law has become an increasingly high-profile issue for the court.
Justice Steven Breyer has said it's appropriate in some instances to look at the law in other places. Justice John Paul Stevens has said allowing U.S. courts to consider the views of international jurists while making a decision is a responsible practice. Before his death, Chief Justice William H. Rehnquist weighed in against the use of foreign law, and Justice Clarence Thomas has done so as well.
Before her retirement, Justice Sandra Day O'Connor dismissed growing criticism about the Supreme Court's use of international law in its opinions, saying it makes sense for justices to look at foreign sources when a point of law is unclear.
Scalia's remarks came at a public policy forum of the National Italian American Foundation.
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by alfayoko2005 | 2006-05-19 09:18