In retrospect, the early 2000s were the salad days of U.S. Supreme Court citations to foreign and international law.
As I wrote in International Law and Rehnquist-Era Reversals (2006), 3 milestone decisions included overt evidence that a majority of Justices, in the course of deciding to overrule precedents, had given consideration to norms contained in international treaties and found in the practice of foreign countries:
► Justice John Paul Stevens dropped a footnote citation to a brief by the European Union in his opinion for the Court in Atkins v. Virginia (2002), which held that the execution of mentally retarded persons violated the Cruel and Unusual Punishments Clause of the 8th Amendment to the Constitution.
► Outlawing the execution of juveniles, Justice Anthony M. Kennedy’s opinion for the Court in Roper v. Simmons (2005) stressed that international treaties and states’ practice forbade such executions.
► And in his opinion for the Court in Lawrence v. Texas (2003), Kennedy discussed British legal practice and a decision of the European Court of Human Rights to refute a prior judgment’s assertion that governmental bans on “homosexual conduct” were “firmly rooted in Judeao-Christian moral and ethical standards.”
That refutation paved the way for the invalidation of an anti-sodomy law in Lawrence – a decision on which the Court relied on June 26 of this year, when it, again through a majority opinion by Kennedy, invalidated a law denying federal benefits to married same-sex couples. (Prior posts here and here.)
The trio of early 2000s decisions prompted criticism, even specious calls to impeach members of those majorities, as I have written here and here. Dissenters likewise inveighed against such citations. For example, Justice Antonin Scalia (photo credit), quoting an earlier opinion by Justice Clarence Thomas, wrote in Lawrence:
The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court … should not impose foreign moods, fads, or fashions on Americans.”
Members of the Court’s majorities in those 3 decisions pushed back in public speeches. They defended consideration of foreign norms as a responsible deliberative practice, an examination of nonbinding yet potentially persuasive sources not unlike their frequent, and accepted, examinations of useful law review articles.
Nevertheless, the criticism seems to have taken its toll: although amici continue to file briefs informing the Court of pertinent foreign norms, in the last decade citations to such sources largely vanished. The June 26 judgment in the same-sex marriage case, United States v. Windsor, stands as a curious exception.
To be sure, Windsor and a related case, Hollingsworth v. Perry, attracted amicus briefs discussing foreign and international law. Indeed, international lawyers filed briefs that cited international developments both in favor of and against gay marriage. Moreover, as I then posted, the global legal landscape on gay marriage continued to shift even as the cases were argued and under advisement.
Yet not a word about any of this in any of the opinions in Perry or Windsor. With one exception, that is.
Challenging the Court’s decision that it had jurisdiction to decide Windsor, Justice Scalia took on the majority’s contention that Chief Justice John Marshall’s opinion in McCulloch v. Maryland (1819) had made clear that the Court has power to review the constitutionality of federal statute. In a dissent joined by Chief Justice John G. Roberts Jr. and by Justice Thomas, Scalia contended that the refusal of President Barack Obama to defend the statute meant that both the government and the claimant agreed, so that there was no issue left to decide. (The majority disagreed because the government still required the claimant to pay taxes owed under the disfavored statute.) Ridiculing the Court’s view of its power, Scalia wrote:
The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons.
One senses not only Scalia’s disagreement with the majority on an issue of standing, but also, perhaps, his frustration that Justices were aware of global changes, and likely read the briefs discussing them, yet eschewed including a citation that marked such consideration. That 2d point has merit. Supporters of foreign-norm consultation no less than opponents ought to urge – in service of the values of transparency and reasoned judgment – that Justices who have looked to such norms write that they have done so.