Justice Sandra Day O'Conner seems to have let her vaunted status as the Court's "Moderate" go to her head recently. She has been heard at several functions and in several interviews expounding on how the U.S. Supreme Court should be considering foreign precedent more often in its decisions. There is nothing sudden or new in this, however, as she has also written such things in some of her decisions on the court as far back as 1988.
In an interview with David Rudenstine posted on the Benjamin Cardozo school of law/Yeshiva University Website, O'Conner said, " ...most countries, at least in the western world, face similar issues from time to time...They have faced many of the same issues we have and at roughly the same time. It is my sense that we have not paid close attention institutionally to the jurisprudence of Canada or other nations. I think that's changing."
When she was asked directly, Justice O'Conner said she felt that the Court should consider decisions by foreign courts to gain "additional insight on our own traditions or interpretations." She continued with, "I would, if it were an issue that had a close parallel in decisions of that other country. I would be interested to know how they handled it, yes."
In remarks to the 79th annual meeting of the American Law Institute in May of 2002, O'Conner said, "understanding international law is no longer just a legal specialty" but "a duty we all share." The Justice proclaimed that American lawyers and judges must pay attention to foreign decisions because of globalization. "Thirty percent of our gross domestic product is internationally derived," so "We operate today under a large array of international agreements and organizations". She went on to say that globalization "also represents a greater awareness of, and access to, people and places far different from our own," and that the all nations' fates are "more closely intertwined than ever before."
In the closing moments of her address to the ALI she desired an "...appreciation of the music of the law -- which, like real music, should transcend international boundaries." Lyrical words, but dangerous.
Contrast the above comments from Justice O'Conner with comments from Justices Scalia, Rehnquist and White who said that it is "totally inappropriate" to consider foreign precedent "as a means of establishing fundamental beliefs of this Nation." (That from Thompson v. Oklahoma, 487 U.S. 815 -1988) Justice Thomas has also put down the idea that foreign law decisions should influence US jurisprudence.
How is it that Justice O'Conner has decided that US constitutional law should somehow be mixed with international law? Our system was conceived as a departure from foreign (meaning European at the time) law. It was meant to improve justice to insure and guard the rights of the common man and, above all else, to stay true to the constitution of the United States. So, how can foreign precedent be so vitally important to US law?
It is specious reasoning that because "Thirty percent of our gross domestic product is internationally derived" we must suddenly be so observant of foreign precedent. Their laws certainly have little in common with the US Constitution in many cases. If we buy a British made auto should we drive on the other side of the road or should we continue to observe US traffic laws and tradition?
It is shocking, to say the least, that a sitting United States Supreme Court Justice should feel disposed to take foreign precedent so seriously when making decisions in US cases. The only basis for deciding US law must remain US precedent and Constitutional interpretation. If this changes we essentially undermine that history and further make fungible the US Constitution. Let us hope that the other justices succeed in guiding the Court's majority decisions toward constitutional theory and stricter interpretation.
It is interesting, however, that she holds courts in other lands in such high esteem on the one hand when, on the other hand, she seemed to agree that foreign jurisprudence is not so highly regarded. She later went on to tell Rudenstine, "My sense is that jurists from other nations around the world understand that our court occupies a very special place in the American system, and that the court is rather well regarded in comparison, perhaps, to their own." If her colleagues on foreign courts know their work is not very highly regarded why does she hold their decisions in such high esteem?