Cite Foreign Law and Risk Death

Justice Ginsburg revealed in a speech that she and Justice O’Connor were the targets of death threats over their citation to foreign and international law. As reported by Tony Mauro of the Legal Times, Ginsburg said:

“Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support… And one not-so-small concern — they fuel the irrational fringe.” She then revealed the online threat. Ginsburg, who turned 73 Wednesday, delivered the speech Feb. 7, without much apparent media coverage, in South Africa. The text was posted without notice on the Supreme Court’s Web site on March 2.

Ginsburg said in her speech that the office of the marshal of the Court, who is in charge of security for the justices, alerted her to a Feb. 28, 2005, Web “chat” posting that began, “Okay commandoes, here is your first patriotic assignment.” After mentioning that Ginsburg and O’Connor invoke foreign laws and rulings, the posting continued, “This is a huge threat to our Republic and constitutional freedom … If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.” Ginsburg did not indicate where on the Web the message appeared or if any investigation ensued.

I am not surprised that fringe elements have taken the whole foreign citation brouhaha to this extreme, though, as I’ve said before, I think this is much ado about very little. Actually, Justice Ginsburg said it a lot better:

“Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions. Yes, we should approach foreign legal materials with sensitivity to our differences, deficiencies, and imperfect understanding, but imperfection, I believe, should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey.”

Ginsburg also noted that “Judges in the United States are free to consult all manner of commentary — restatements, treatises, what law professors or even law students write copiously in law reviews, for example. If we can consult those writings, why not the analysis of a question similar to the one we confront contained in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?”

Anyway, if you find this interesting, I am editing a short collection of speeches on foreign and international law by U.S. Supreme Court Justices. The collection is being published by the American Society of International Law and includes speeches going back about 100 years as well as a recent flurry of speeches on the foreign citation issue, in particular. I’ll let you know when the book comes out and/or when my introductory essay goes up on SSRN.