Judge Roberts Hearing: Use of Foreign Law in Constitutional Cases

I am back on the blog and wanted to post this exchange between Roberts and Senator Kyl (R. Ariz.) at today’s hearing of Judge Roberts. (For background on the contours of the debate, see Jeff Toobin’s New Yorker piece (via Scotusblog) on Justice Kennedy’s “cosmopolitanism” and the use of foreign law).

KYL: It’s an American Constitution, not a European or an African or an Asian one. And its meaning, it seems to me, by definition, cannot be determined by reference to foreign law. I also think it would put us on a dangerous path by trying to pick and choose among those foreign laws that we liked or didn’t like. For example, many nations have a weak protection for freedom to participate in or practice one’s religion. Iran and some other Middle Eastern nations come immediately to mind. But even a modern Western nation like France has placed restrictions on religious symbols in the public square. That would be highly unlikely to pass muster in U.S. courts. Should we look to France to tell us what the free exercise clause means, for example? Even nations that share our common law tradition such as Great Britain offer fewer civil liberty guarantees than we do. And the press has far less freedom. Nations such as Canada have allowed their judges to craft a constitutional right to homosexual marriage. There’s a lot more to say on the subject. But I wanted to hear from you. So my question is this: What, if anything, is the proper role of foreign law in U.S. Supreme Court decisions? And, of course, we’re not talking about interpreting treaties or foreign contracts of that sort, but cases such as those that would involve interpretations of the U.S. Constitution.

ROBERTS: Well, I don’t want to comment on any particular case but I think I can speak more generally about the approach. I know Justices Scalia and Breyer had a little debate about it themselves here in town that was very illuminating to get both of their views.
And I would say, as a general matter, that there are a couple of things that cause concern on my part about the use of foreign law as precedent. As you say, this isn’t about interpreting treaties or foreign contracts but as precedent on the meaning of American law. The first has to do with democratic theory. Judicial decisions: In this country, judges, of course, are not accountable to the people, but we are appointed through a process that allows for participation of the electorate. The president who nominates judges is obviously accountable to the people. Senators who confirm judges are accountable to people. And in that way, the role of the judge is consistent with the democratic theory.

ROBERTS: 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. And yet he’s playing a role in shaping the law that binds the people in this country. I think that’s a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn’t confine judges. It doesn’t limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don’t find it in the decisions of France or Italy, it’s in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They’re there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent — because they’re finding precedent in foreign law — and use that to determine the meaning of the Constitution. And I think that’s a misuse of precedent, not a correct use of precedent.