Tags: ginsburg | foreign | law

Ginsburg: U.S. Judges Should Consider Foreign Law

Monday, 13 Apr 2009 02:14 PM

By Dan Weil

Supreme Court Justice Ruth Bader Ginsburg says it’s ok for U.S. judges to use foreign law for guidance in their own decisions.

The courts four conservative members – Chief Justice John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas – oppose the use of foreign law in constitutional cases.

“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Ginsburg said Friday in a symposium honoring her at Ohio State University, The New York Times reports.

Ginsburg says she’s fine with the idea that a U.S. court shouldn’t consider itself bound by the precedent established in international law.

But she’s also fine with the idea that a U.S. court can be influenced by strong reasoning from overseas.

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she says.

The Supreme Court’s reluctance to take into account foreign law has caused its global influence to wane, Ginsburg argues.

The Canadian Supreme Court is “probably cited more widely abroad than the U.S. Supreme Court,” she says. That’s because “You will not be listened to if you don’t listen to others.”

Roberts looks at in a different way. “If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge, and no Senate accountable to the people confirmed that judge, he said at his confirmation hearing.

“And yet he’s playing a role in shaping the law that binds the people in this country.”

Several bloggers took issue with Ginsburg. “Having foreign laws guide American law is unconstitutional,” writes Don Surber of the Charleston (WV) Daily Mail.

“The justices are wrong in following foreign law — or even referring to them, with the exceptions being the Magna Carte and British common law,”

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