Scalia v. Breyer on Using International Law for Precedent

John Fund describes a recent debate between Justices Scalia and Breyer:

Justice Antonin Scalia, who wrote the minority dissent in the juvenile death penalty case, opened his argument by lamenting the "arrogance" of judges who cite international law rather than the U.S. Constitution they are sworn to uphold. "Doesn't it seem arrogant to think I can decide moral views for penology, death penalty and abortion?" he asked, in arguing that legislatures or voters should make those decisions.

Justice Stephen Breyer replied that the court had to look more widely at how to define fundamental rights in an increasingly 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."

"What you're looking for are the standards of decency of American society," Mr. Scalia shot back. "What does an opinion of a wise Zimbabwe judge have to do with what Americans believe?" That stung Mr. Breyer, who had cited a court case from Zimbabwe in a decision a few years back. Acknowledging that the country's rule of law has been destroyed under the despotic rule of Robert Mugabe, Mr. Breyer agreed that his citation of a Zimbabwean judge was "unfortunate."

But that's the trouble. When citing international law, judges are likely to be selective in their use of foreign opinions, cherry-picking those that fit the outcome they want. A foreign court may oppose the death penalty, for example, but since the U.S. is one of the few countries in the world to have legalized third-trimester abortions, the same foreign court would likely have a more conservative slant on abortion.