16 Jan Breyer v. Scalia: A "Messy Conversation" on Foreign Law
Breyer and Scalia don’t appear to disagree about international or comparative law per se, but about the appropriate role of judges and their use of any non-binding sources of law or information when trying to resolve cases. (In fact, Scalia has stated clearly that he sees it as important and appropriate to use foreign and international court opinions in interpreting the treaty obligations of the United States.) And since no one claims that foreign sources are binding in any way, how is discussing them a danger to popular sovereignty? It seems perfectly sensible for the Court to seek out all sorts of sources of information in an effort to better understand complex legal questions. As Breyer put it, foreign law sources are simply one element of the “messy conversation” about law that judges take part in:
[L]aw is not really handed down from on high, even from the Supreme Court. Rather, it emerges. And we’re part of it, the clerks are part of it, but only part. And what really survives every time is the result, I tend to think of a conversation. I think that’s the right word, conversation among judges, among professors, among law students, among members of the bar, because you need people to put things together, you need people to decide cases, you need people to tell you how it works out in practice. And out of this giant, messy, unbelievably messy conversation emerges law. And that means you have to have the conversation.
Jamin Raskin argues that Scalia can’t have it both ways on originalism: either all outside sources (including Blackstone, Shakespeare, popular movies and Gilbert & Sullivan) that find no explicit mention in the Constitution or the history of its drafting are improper subjects for discussion by the Court, or everything is fair game. And it seems pretty clear that recent political responses to the mere mention of foreign law in the Court’s opinions (see, e.g., HR 3799) were motivated not so much out of concern for coherence in judicial decision-making, but out of lingering bitterness on the Hill over European opposition to the Iraq war.