More on Breyer v. Scalia

More on Breyer v. Scalia

Following up on our posts here, here, and here on the Breyer-Scalia discussion on foreign law and constitutional interpretation, Seth Tillman, a clerk on the Third Circuit Court of Appeals who has published widely on a variety of topics (see here), points out that Breyer may even have offered a foreign policy justification for citing foreign law. He writes,

I am surprised that no one picked up on this comment by Breyer:

BREYER: I said, “If here I have a human being called a judge in a different country dealing with a similar problem, why don’t I read what he says if it’s similar enough? Maybe I’ll learn something.” To which the congressman said, “Fine. Read it. Just don’t cite it.” (Laughter.) I thought, “All right.”

Look, let me be a little bit more frank, that in some of these countries there are institutions, courts that are trying to make their way in societies that didn’t used to be democratic, and they are trying to protect human rights, they are trying to protect democracy. They’re having a document called a constitution, and they want to be independent judges. And for years people all over the world have cited the Supreme Court, why don’t we cite them occasionally? They will then go to some of their legislators and others and say, “See, the Supreme Court of the United States cites us.” That might give them a leg up, even if we just say it’s an interesting example. So, you see, it shows we read their opinions. That’s important. Then he says, “Well, write them a letter.” (Laughter.) I thought I wasn’t making much headway. He had a point. And the point is the point that Justice Scalia has made. How do we know we can keep this under control? How do we know we cite both side? How do we know we looked for everything? Well, I’d say that kind of a problem arises with any sort of citation. A judge can do what he’s supposed to do, or not. And we hope they do what they’re supposed to do. Would I try to refer to both sides? Of course I would.” (emphasis Tillman’s)

Was he [Breyer] advocating a foreign policy for the Supreme Court? What did he mean by a leg up? A leg up on whom? Do we get to debate which nations should or should not get noticed by the Supreme Court?

Tillman adds:

Personally, I was not so much astounded by Associate Justice Breyer’s statement — as the lack of any response by his colleague Associate Justice Scalia, the moderator — Professor Anderson, or any one in the audience. I nearly fell out of my seat. You can write that up too. As I indicate below — I am not one who is in principle against citing foreign law or authority, even beyond English law (the step-child of Justice Scalia’s jurisprudence).

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