The Breyer-Scalia Road Show

Justices Breyer and Scalia have now taken their debate about foreign precedent on the road. They were in Melbourne, Australia this weekend to discuss with Australian High Court Justices Kirby and Heydon the topic of judicial activisim. A summary of the discussion is in a John O’Sullivan column here. (No word yet from the University of Melbourne as to whether the event was recorded or transcribed).

On the subject of relying on foreign precedent, Sullivan indicated that the skeptics at the Melbourne discussion (Scalia and presumably Heydon) feared the countermajoritarian thrust of the foreign precedent movement. “Instead of being ruled by elected representatives in Congress and the presidency, we gradually find ourselves living under laws shaped by a new political elite of international lawyers. ” Makes them sound almost as important as Article 38(1)(d) of the ICJ Statute! Meanwhile proponents of judicial activism (Breyer and Kirby) argued that “judicial activism was essential to save us from the kind of human rights abuses that occurred in the 1930s in Europe — a necessary restraint on the potential oppression of minorities by majority rule…” Sullivan gives more details on the debate. Read it.

A far more amusing version of the discussion is available from a Melbourne law student over at Underneath Their Robes. Favorite quote, “When I saw him [Justice Breyer], I noticed that he was wearing the lapel pin of the French Legion of Honour, which seemed to be taking this whole ‘foreign law’ thing a bit too far.”