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Justice Kennedy's New Rule of Law

Monday, 12 September 2005 12:00 AM

So far there has been little speculation as to how chief justice nominee John Roberts might handle one of the most important questions he could face: does he believe that his judicial decisions should rely strictly on his interpretation of U.S. Constitutional law and American legal precedent, or should he take into account foreign and international laws as well in forming his legal opinions?

The question, if Kennedy's remarks in this week's New Yorker are any indication, is probably the most pressing one that can be asked of Roberts.

Kennedy and retiring justice Sandra Day O'Connor, both once considered solid conservative court picks, have veered decidedly leftward in several court rulings by invoking foreign legal precedents. The practice of using foreign laws to make U.S. law is new and novel – and has only come into vogue since the 1990s.

This past May, NewsMax Magazine reported that Justice Ruth Bader Ginsburg told a conference that she considers foreign laws, not just U.S. laws and the Constitution, in forming her legal opinions.

Ginsburg's views are not surprising. A Clinton appointee and former ACLU legal counsel, she is viewed as the court's most liberal jurist.

But her views about the use of foreign laws have apparently influenced both O'Connor and Kennedy – and may do the same for Roberts.

Now, the eye-opening article in The New Yorker magazine explores how Justice Anthony Kennedy's passion for foreign laws could change the court in the years to come.

Toobin writes that over the past two years, Kennedy "has become a leading proponent of one of the most cosmopolitan, and controversial, trends in constitutional law: using foreign and international law as an aid to interpreting the United States Constitution."

"Kennedy's embrace of foreign law may be among the most significant developments on the court in recent years – the single biggest factor behind his evolution from a reliable conservative into the likely successor to Sandra Day O'Connor as the court's swing vote."

The use of foreign and international laws in deciding Supreme Court decisions has outraged many present and former policymakers in Washington.

"Relying upon foreign law, particularly international covenants to which the United States is not a party, is an illegitimate source of interpretation for the Constitution," former Reagan administration Attorney General Edwin Meese told NewsMax.

"It is impossible to reconcile foreign customs or opinions of law with the meaning of the Constitution," he added. Meese made clear, however, that he was not commenting on Kennedy's remarks but on the concept of using foreign laws to interpret U.S. laws.

Meese argues that using foreign laws "is to engage in judicial activism; making policy decisions – which is the province of Congress or state legislatures – rather than interpreting the Constitution itself."

Kennedy, 68, was appointed by President Reagan in 1987 and still toes the conservative line on a number of issues. As the New Yorker points out, he continues to oppose racial profiling for affirmative action, supports expansive presidential powers and was a principal author of the majority opinion in Bush v. Gore, the ruling that confirmed George Bush's electoral win in the aftermath of the 2000 election.

But he also wrote the court's two most important pro-gay rights decisions and has indicated support for Roe v. Wade, stances that conservatives view as a betrayal.

James Dobson, America's most influential evangelical and founder of Focus on the Family, has called Kennedy "the most dangerous man in America."

Beginning in the late 1990s, justices began citing sources from outside the U.S. in several cases relating to individual liberties:

Kennedy also noted that the European Court of Human Rights had ruled that laws against gay sexual activity violated the European Convention on Human Rights.

"It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty," Kennedy wrote.

Kennedy's reliance on foreign sources has sparked a vigorous backlash from Justice Antonin Scalia, Toobin writes.

In dissenting opinions in the sodomy and juvenile death penalty cases, Scalia condemned any reference to foreign sources by the Supreme Court.

"The basic premise of the court's argument – that American law should comport to the laws of the rest of the world – ought to be rejected out of hand," Scalia wrote.

In August, Rep. Steve King, an Iowa republican, completed an investigation of the justices' foreign travel.

"Between 1998 and 2003, the justices took a total of 93 foreign trips," King told Toobin. "And the implication is that there are at least a couple of justices, chiefly Kennedy and Breyer, who are more enamored of the ‘enlightenment' of the world than they are bound by our own Constitution."

Kennedy in particular has a passion for foreign cultures and ideas. In the late 1970s he was appointed supervisor of the territorial courts in the South Pacific, and traveled often to Guam, Palau, Saipan, American Samoa, Australia, New Zealand and Japan.

Every summer for the past 15 years, Kennedy and his wife Mary have rented an apartment in Salzburg, Austria, where he has taught a summer program at the local university.

Salzburg is the home of the "Salzburg Seminar" – a legal and political circle formed in 1947 by Harvard graduates to bridge American and Europeans in a "Marshall Plan of the mind." Today, it is the focal point for legal minds around the world; and nine Supreme Court Justices have made visits to the Seminar. Kennedy is the most active participant among U.S jurists.

Toobin sat in on one of Kennedy's classes in Salzburg this past summer and heard him tell his American students that in addition to the U.S. Constitution, "there is also the constitution with a small ‘c,' the sum total of customs and mores of the community. The closer the big ‘C' and the small ‘c,' the better off you are as a society."

After class, Kennedy had lunch with Richard Goldstone, the former chief war crimes prosecutor for the United Nations and now a member of the commission investigating the oil-for-food scandal at the U.N.

"Judges check each other out," Kennedy told Toobin later, inferring his profession saw no national bounds. "We're a guild, just like physicians or military people are guilds."

Kennedy believes the use of foreign law by the Supreme Court is an inevitable result of an increasingly interconnected world, according to Toobin.

"It really began with the Holocaust, when international law started to concern itself with how nations treated their own citizens," said Kennedy.

"Country A is concerned with how Country B treats its own citizens. So you had the beginnings of things like the European Court of Human Rights."

Kennedy's "internationalist" approach to his Supreme Court decisions has sparked criticism from both legal scholars and Capitol Hill.

House Majority Leader Tom DeLay complained in an interview: "We've got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States. That's just outrageous. And not only that, he said in session that he does his own research on the Internet. That is just incredibly outrageous."

Rep. Tom Feeney, a Florida republican, has sponsored a resolution condemning the court's use of foreign laws.

"The resolution says that it is always and everywhere inappropriate to base decisions regarding the original meaning of the U.S. Constitution on foreign laws, institutions or constitutions," Rep. Feeney told NewsMax in an exclusive interview.

"All you have to do if you use this approach is to line up all 191 countries and see which one agrees with the outcome that fits your personal bias as a judge.

"There's no rhyme or reason to which countries it's appropriate to refer to in this recent trend."

Asked if relying on foreign law could be an impeachable offense, Feeney said: "The first step in my view is for both bodies of congress to advise the court that they are engaging in misbehavior, which is what the Feeney Resolution does.

But he added: "You take an oath as a judge, just like every president and every congressman, that the supreme law of the land is the United States Constitution. If you are pushing aside the Constitution for foreign laws, in my view you may be violating your oath."

And Mark Levin, a former top Justice Department official and author of the New York Times bestselling book "Men in Black: How the Supreme Court Is Destroying America," told NewsMax that justices who rely on foreign law "don't explain when it's appropriate, which foreign law should be invoked, or how using foreign law can help interpret the U.S. Constitution.

"Any justice who approaches their role in this way is declaring his or her contempt for the Constitution, the rule of law, and the American people.

"I strongly endorse Rep. Feeney's effort."

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So far there has been little speculation as to how chief justice nominee John Roberts might handle one of the most important questions he could face: does he believe that his judicial decisions should rely strictly on his interpretation of U.S. Constitutional law and...
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Monday, 12 September 2005 12:00 AM
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