American courts need to pay more attention to international legal decisions to help create a more favorable impression abroad, said U.S. Supreme Court Justice Sandra Day O’Connor at an awards dinner in Atlanta.
Sandra Day O’Connor
“The impressions we create in this world are important, and they can leave their mark,” O’Connor said, according to the Atlanta Journal-Constitution.
The 73-year-old justice and some of her high court colleagues have made similar appeals to foreign law, not only in speeches and interviews, but in some of their legal opinions. Her most recent public remarks came at a dinner Tuesday sponsored by the Atlanta-based Southern Center for International Studies.
The occasion was the center’s presentation to her of its World Justice Award.
O’Connor told the audience, according to the Atlanta paper, the U.S. judicial system generally gives a favorable impression worldwide, “but when it comes to the impression created by the treatment of foreign and international law and the United States court, the jury is still out.”
She cited two recent Supreme Court cases that illustrate the increased willingness of U.S. courts to take international law into account in its decisions.
In 2002, she said, the high court regarded world opinion when it ruled executing the mentally retarded to be unconstitutional.
American diplomats, O’Connor added, filed a court brief in that case about the difficulties their foreign missions faced because of U.S. death penalty practices.
More recently, the Supreme Court relied partly on European Court decisions in its decision to overturn the Texas anti-sodomy law.
“I suspect,” O’Connor said, according to the Atlanta daily, “that over time we will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues.”
Doing so, she added, “may not only enrich our own country’s decisions, I think it may create that all important good impression.”
In July, O’Connor made a rare television news show appearance with Supreme Court Justice Stephen G. Breyer in which they were asked whether the U.S. Constitution, the oldest governing document in use in the world today, will continue to be relevant in an age of globalism.
Speaking with ABC News’ “This Week” host George Stephanopoulos, Breyer took issue with Justice Antonin Scalia, who, in a dissent in the Texas sodomy ruling, contended the views of foreign jurists are irrelevant under the U.S. Constitution.
Breyer had held that a ruling by the European Court of Human Rights that homosexuals had a fundamental right to privacy in their sexual behavior showed the Supreme Court’s earlier decision to the contrary was unfounded in the Western tradition.
“We see all the time, Justice O’Connor and I, and the others, how the world really – it’s trite but it’s true – is growing together,” Breyer said. “Through commerce, through globalization, through the spread of democratic institutions, through immigration to America, it’s becoming more and more one world of many different kinds of people. And how they’re going to live together across the world will be the challenge, and whether our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generations.”
In his dissent in the Texas case, Scalia said: “The court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is … meaningless dicta. Dangerous dicta, however, since this court … should not impose foreign moods, fads, or fashions on Americans,” he said quoting the 2002 Foster v. Florida case.
Scalia’s scathing critique of the 6-3 sodomy ruling was unusual in its bluntness.
“Today’s opinion is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct,” he wrote. Later he concluded: “This court has taken sides in the culture war.”
The current court is split between Chief Justice William Rehnquist, Clarence Thomas and Scalia, who tend to hold the traditional constitutionalist approach to rulings, and the majority of O’Connor, Breyer, Kennedy, Ruth Bader Ginzburg, David H. Souter and John Paul Stevens, who tend to believe in the concept of a “living Constitution” subject to changes in public opinion and interpretation.