When Does Justice Scalia Love International and Foreign Laws?

I recently finished teaching Hartford Fire again. And it got me pondering Justice Scalia’s curious attitudes towards international and foreign law. Scalia’s hostility to the use of foreign legal norms in interpreting the U.S. Constitution is well-established. As far back as Thompson v. Oklahoma in 1988 we see Scalia critique

“The plurality’s reliance upon Amnesty International’s account of what it pronounces to be civilized standards of decency in other countries” as “totally inappropriate as a means of establishing the fundamental beliefs of this Nation. . . . We must never forget that it is a Constitution for the United States of America that we are expounding. . . . [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.”

He’s flogged that view even more vociferously of late in response to other Justices who have found the use of foreign legal sources in interpreting the Constitution alluring. He relied on it extensively in his 2004 address to the American Society of International Law, in debating Justice Breyer in 2005, and again in his 2006 Keynote Address to the American Enterprise Institute. In Lawrence v. Texas he wrote that “constitutional entitlements do not spring into existence … because foreign nations decriminalize conduct.” More recently, in Sosa v. Alvarez-Machain Scalia railed against the internationalist position: “The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign’s treatment of its own citizens within its own territory, is a 20th–century invention of internationalist law professors and human-rights advocates.”



And, yet, there’s Hartford Fire to consider. In assessing the reach of the Sherman Antitrust Act, it’s Scalia who critiques his colleagues for not being more deferential to international law and foreign legal regimes: i.e., “statutes should not be interpreted to regulate foreign persons or conduct if that regulation would conflict with principles of international law” and “the scope of generally worded statutes must be construed in light of international law in other areas as well.” You might think it’s an anomaly—a one-time exception to his more recent pronounced hostility to foreign and international law? You’d be wrong. In his Olympic Airways dissent, Scalia criticizes the majority for “its failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us.” More recently in 2005, in Spector v. Norwegian Cruise Line, Ltd., Scalia’s dissent would have had the Americans with Disabilities Act (ADA) construed consistent with the “rule of international law that the law of the flag ship ordinarily governs the internal affairs of a ship,” which he viewed as a rule that “sought to avoid conflict with the laws of the ship’s flag state, the laws of other nations and international obligations to which the vessels are subject.” Indeed, in that case, Scalia reaffirmed his Hartford Fire dissent by arguing that even the possibility of a conflict with foreign or international law should constrain the reach of the ADA.



I’m fascinated by this (and I’m not the only one—check out Melissa Waters’ earlier symposium essay on the topic or Roger’s lengthier treatment of it here). How can Justice Scalia so strenuously object to Constitutional law interpretations that invoke foreign or international legal norms, but at the same time insist that courts do not pay enough attention to those very same sources when it comes to interpreting the scope of U.S. statutes?



Perhaps the answer lies in the doctrine. After all, the Constitution and statutes constitute two different sources of law. The Constitution serves as a “formal” source of law (i.e., a law for making laws) – laying out the substantive and procedural limits on government conduct with a corresponding hierarchical superiority over all other “law” (at least within the U.S. legal system). Statutes, in contrast, are rules of general application that emerge from constitutional processes and must be read with other rules given equal weight (e.g., treaties) or recognized as law (e.g., customary international law). Indeed, Justice Scalia has emphasized that in interpreting treaties he’s especially amenable to using foreign judicial decisions since, unlike the Constitution, those courts are interpreting the same legal norm that binds the United States. So, perhaps we can explain Justice Scalia’s mixed views on foreign and international legal norms as a function of the doctrinal context in which they apply – i.e., required for statutes, prohibited for the Constitution.



Although the doctrinal explanation may be accurate, I’d like to suggest an alternative vision of Justice Scalia’s love/hate relationship with foreign and international laws. Thinking in more legal realist terms, it appears that Justice Scalia disfavors the use of international or foreign law whenever it would be rights-enhancing; i.e., whenever the Court would (or does) use foreign or international legal norms to afford individuals additional rights or liberties not previously recognized as a matter of U.S. law. In contrast, Justice Scalia appears to favor the use of foreign and legal materials whenever they are pro-business; i.e., whenever the application of those foreign or international laws would limit the liability of businesses or exclude the application of regulations or other legal norms. Thus, in Thompson, Lawrence , and Sosa, Justice Scalia disfavors applications of international and foreign law norms that would have afforded individual criminal defendants additional rights or liberties. But, in Hartford Fire, Olympic Airways, and Spector, Scalia’s seeking to apply international or foreign law to preclude applying the restrictions of the Sherman Antitrust Act, the Warsaw Convention’s liability regime, and the ADA to business interests.



This seems to suggest Justice Scalia likes international and foreign laws when they favor industrial interests, but dislikes them when they favor individual interests. Obviously, we could have a normative discussion of whether that’s a good approach. For the moment, though, I’m interested in whether my analysis holds up descriptively. Is it convincing, or does the more traditional doctrinal distinction carry greater weight? Or, perhaps there’s another unarticulated explanation for Justice Scalia’s views?



Chief Justice Roberts and Justice Alito expressed their own disdain for using international and foreign law in the constitutional context in their confirmation hearings and other justices have expressed similar hostility (e.g., Thomas). Thus, I’d think it’s important to explain Justice Scalia’s overarching method here in order to appreciate whether it will have wider appeal within the Court in the future. At the same time, if my description holds I’d expect it diminishes some of the force in Justice Scalia’s own arguments against using international and foreign law in constitutional interpretation because he believes that they are deployed primarily to support whatever outcome the invoking justice seeks to achieve. Is that any different though than Justice Scalia’s own track record on when he employs international and foreign law in statutory interpretation questions? Obviously, I’m working with a pretty small sample here, so I’d be interested in whether I’m missing something in these cases, or if there are additional opinions that add to the question of when does Justice Scalia love international and foreign law.



[Opinio Juris intern Louis Froelich provided able research assistance for this post]