Parting words from Justice Scalia
posted by Melissa Waters
The time has come for me to say farewell to the CoOp community — I’ve thoroughly enjoyed my stint as a guest blogger, and hope to visit again sometime soon.
As much of my blogging over the last month has been on the controversy over the use of foreign and international law in U.S. courts (see here and here), I thought it would be appropriate in my “farewell” blog to give Justice Scalia the last word. His diatribes against foreign and international law have inspired various Congressional attempts to legislate against the practice: A Senate bill, for example, would forbid federal judges from citing “any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.” So what does the Justice himself think about his Congressional fan club?
Not much, apparently. The Washington Post reports today that Justice Scalia chastised Congress for sticking its nose where it doesn’t belong. “It’s none of your business. No one is more opposed to the use of foreign law than I am, but I’m darned if I think it’s up to Congress to direct the court how to make its decisions.” The pending legislation, Scalia complained, “is like telling us not to use certain principles of logic.” And he concluded, “Let us make our little mistakes just as we let you make yours.”
As surprised as I am to find myself in agreement with him, I say, “Amen, Justice Scalia.” In my view, the jury is still out on whether it’s a “mistake” to rely on foreign and international law in constitutional interpretation — but surely this is something for our judges to decide for themselves. America is blessed with one of the strongest judiciaries in the world, and we can trust them to figure this out on their own. Congress should leave them alone and let them do their jobs.
And on that note, I’ll sign off for now. Many thanks to all those who have debated this and other issues with me over the past month. I have learned much from your comments, and look forward to continuing the dialogue in the future.
May 19, 2006 at 11:22 am
Posted in: International & Comparative Law
Print This Post
Responses (5)
Elder Don - May 19, 2006 at 5:11 pm
I agree with Scalia. Congress should do its job of confirming Bush nominees to the courts, and then we won’t have to worry about whether the courts cite foreign law.
Daniel J. Solove - May 19, 2006 at 8:54 pm
Melissa — Thanks for your visit and your excellent posts!
Dan
Dave Hoffman - May 20, 2006 at 12:12 am
Indeed, thanks for visiting Melissa – I’ve learned alot from your posts!
Mike S. - May 20, 2006 at 10:01 pm
Thanks, Melissa, for the awesome posts and commentary on international law and the courts. Informative, indeed!
Charles F. Weeks, Esquire - May 23, 2006 at 10:54 am
The problem is that our judiciary is too strong, legislating when it should just adhere to the language of the law!! If you can not understand why current foreign law is irrelevant to our Constitution, you should not aspire to be an attorney, much less a judge. Said practice borders on treason, as well as constituting a total non sequitur. I notice SCOTUS does not cite foreign law in abortion cases, because they would have to overrule the ridiculous Roe v. Wade decision. Foreign law citation is just manipulated to reach the result Ginsburg et al want when they can’t find basis for it in US Law!! What a joke!! Do they really think we are that gullible?
Leave a Reply