WASHINGTON – Judges would be negligent if they disregarded the growing role of international law in U.S. courts, asserted Supreme Court Justice Sandra Day O’Connor in a speech today at Georgetown Law School.
It was the second time O’Connor has made a point of affirming the place of international law in U.S. courts.
O’Connor said the Supreme Court is taking more cases that demand a better understanding of foreign legal systems and procedures. She cited, as a recent example, terror cases involving the U.S. detention of foreign-born detainees at Guantanamo Bay, Cuba.
“International law is no longer a specialty,” said the appointee of President Reagan. “It is vital if judges are to faithfully discharge their duties. Since Sept. 11, 2001, we’re reminded some nations don’t have the rule of law or (know) that it’s the key to liberty.”
Later this term, the Supreme Court is scheduled to decide the constitutionality of executing juvenile killers – a case that has attracted wide interest overseas, with many foreign nations filing briefs pointing to international human rights norms as a justification for banning the practice. O’Connor did not specifically mention the case.
She said recognizing international law could foster more civilized societies in the United States and abroad.
“International law is a help in our search for a more peaceful world,” said O’Connor.
At least five members of the current U.S. Supreme Court align themselves with O’Connor’s position that international law has a role in U.S. courts.
In 2003, Ruth Bader Ginsburg told the American Constitution Society her colleagues are looking beyond America’s borders for guidance in handling cases on issues like the death penalty and homosexual rights.
In a decision earlier that year in a Texas case in which anti-sodomy laws were overruled, the justices first referred to the findings of foreign courts. The year before, the court said executing mentally retarded people is unconstitutionally cruel, noting the practice was opposed internationally. Ginsburg cited an international treaty in her vote in 2003 to uphold the use of race in college admissions.
She said, “Our island or lone-ranger mentality is beginning to change.” Justices, she added, “are becoming more open to comparative and international law perspectives.”
Ginsburg, O’Connor and Stephen Breyer discussed the death penalty and terrorism with French President Jacques Chirac during a European tour that included a conference on the European constitution that same year. France outlawed the death penalty in 1981. Five members of the court attended the conference.
“While you are the American Constitution Society, your perspective on constitutional law should encompass the world,” she told the group of judges, lawyers and students. “We are the losers if we do not both share our experiences with and learn from others.”
Ginsburg also tipped that the Internet is making it easier for the justices to keep up with the decisions of foreign courts.
Earlier, a New York Times story explained that extensive foreign travel has made both Anthony Kennedy and O’Connor “more alert” to how their peers on other constitutional courts see similar issues.
“Justices have always traveled, teaching or taking part in seminars,” the story said. “But these are trips with a difference.”
The story said Ginsburg, Breyer, O’Connor and Kennedy have held extensive sessions with judges in Europe. Kennedy, it said, has met with numerous Chinese judges – both in the United States and in China. O’Connor has been involved in the American Bar Association’s reform initiative in Eastern Europe.
“With emerging democracies groping toward the rule of law, with colleagues on the federal bench volunteering for constitution-writing duties in Iraq, it is not surprising that the justices have begun to see themselves as participants in a worldwide constitutional convention,” the New York Times story said ominously.
Not all of the justices agree, however. In his dissent in the Texas sodomy case, Justice Antonin Scalia wrote that the court should not “impose foreign moods, fads or fashions on Americans.”