[Volokh] Jim Lindgren: Against Impeaching Justice Ginsburg Over the Use of Foreign Law.--

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Posted by Jim Lindgren:
Against Impeaching Justice Ginsburg Over the Use of Foreign Law.--
http://volokh.com/archives/archive_2006_03_19-2006_03_25.shtml#1142746098


   A few days ago, John Hinderaker had a [1]long post criticizing Justice
   Ruth Bader Ginsburg's defense of the Supreme Court's use of foreign
   law. Paul Mirengoff adds to [2]John's post the statement:

     It won't happen, of course, but I think there's a case to be made
     for impeaching Justice Ginsburg.

   Paul then repeats his claim in a [3]post of his own:

     Last night, John criticized Justice Ginsburg for her speech in
     South Africa defending the use of foreign law and court decisions
     to interpretation of the American Constitution. I suggested that a
     good case can be made that Ginsburg should be impeached. That case
     will become even stronger to the extent that her willingness to use
     foreign law continues to inform her opinions.

   I find the current debate over the Supreme Court's reference to
   foreign law somewhat strange, since the Supreme Court has cited
   foreign law for almost all of its history. In a new manuscript by my
   colleague Steve Calabresi and Stephanie Zimdahl, they document nearly
   all the uses of foreign law in the Court's history. It can be
   downloaded from SSRN at the end of their long abstract [4]here.

   Calabresi and Zimdahl take a somewhat more nuanced approach than does
   either Justice Ginsburg or her critics:

     This Article [describes] . . . what the Supreme Court's practice
     has actually been from 1789 to 2005 with respect to citing foreign
     sources of law. We will show that the Court's citation of foreign
     sources of law in recent years is not unprecedented as Justice
     Scalia implies, but that citation to foreign sources of law is
     increasing in the modern era in ways that may be very problematic.
     We show that there have been some dramatic, if not notorious,
     instances of the Court citing foreign sources of law historically,
     as happened for example in the Dred Scott case and in the
     anti-polygamy case, Reynolds v. United States. Moreover, we will
     show that the debate over citing foreign sources of law in American
     judicial decisions is not a new one at all. Indeed, the practice
     was debated as early as 1820 when Justice Livingston, in a
     sentiment echoed many years later by Justice Scalia, responded to
     Justice Joseph Story's citation of foreign sources of law in a
     Supreme Court case to provide a definition for the crime of piracy,
     by stating that it it is not perceived why a reference to the laws
     of China, or to any other foreign code, would not have answered the
     purpose quite as well as the one which has been resorted to. Thus,
     Scalia's modern lament finds an echo as long ago as 1820 in the
     U.S. reports. . . .

     This article thus examines the many instances between 1789 and 2005
     in which the Court has cited foreign sources of law and points out
     that several themes become apparent. First, on some occasions, the
     Court cites such sources as evidence of the reasonableness of its
     decisions: foreign practice is reviewed as to whether an American
     practice is reasonable or unusual. Second, we think it is striking
     that the three Justices who have historically been most likely to
     cite foreign sources of law in their opinions, Justices Joseph
     Story, Felix Frankfurter, and Stephen Breyer, were all, at some
     point in their careers, professors at Harvard Law School. This
     suggests a Harvard nexus to the debate over citation of foreign
     sources of law, which has gone previously unobserved. . . .

     Our analysis of the Court's practice leads us to several
     conclusions.

     First, we believe those who say the Court has never before cited or
     relied upon foreign sources of law are clearly and demonstrably
     wrong. In fact, the Court has relied on such sources to some extent
     throughout its history.

     Second, the Court has, however, cited foreign sources of law with
     much more frequency in far more important constitutional cases in
     recent years, as Justice Scalia has suggested, and in addition the
     Court has tended to cite foreign sources of law in some of its most
     problematic opinions such as Dred Scott, Reynolds, and Roe v. Wade.
     This suggests Scalia is right to be wary of the Court's new trend
     in this direction. Third, as Professor Calabresi has argued
     elsewhere, citation to foreign law is most justifiable when the
     U.S. Constitution asks the justices to weigh whether a certain
     practice is reasonable, as it does in the Fourth Amendment, or
     whether it is unusual, as it does in the Eighth Amendment. In
     contrast, citation to foreign law is least justifiable when the
     Court is asked to determine whether an unenumerated right is deeply
     rooted in American history and tradition, as was the case in
     Lawrence, or whether a federal statute violates American federalism
     rules, as it was asked to do in Printz v. United States. In these
     cases, we agree with Justice Scalia that the Court's task is to
     interpret the original meaning of our Constitution and not to
     determine the current day reasonableness or unusualness of a
     legislative practice. We thus think, with Justice Scalia, that in
     the over-whelming majority of non-Fourth and Eighth Amendment, it
     will not be appropriate for the Supreme Court to cite foreign
     sources of law. Citation of such law is, in fact, a sign that the
     Court is falling into policy-making, as it did in Dred Scott,
     Reynolds, and Roe v. Wade, and this in turn suggests the justices
     are behaving illegitimately. 

   While [5]John and [6]Paul make several good points in their critiques
   of Justice Ginsburg's speech on foreign law, the case for Justice
   Ginsburg's impeachment is neither outlined by Paul, nor do I see any
   serious basis for it.

   I don't know whether a Justice should ever be impeached for holding a
   bad judicial philosophy, but such a philosophy would have to be far
   more unusual than Justice Ginsburg's to form a plausible basis for
   impeachment. By the way, I don't read Paul as actually advocating that
   Ginsburg be impeached, just opining that a good case could be made for
   such a move.

References

   1. http://powerlineblog.com/archives/013432.php
   2. http://powerlineblog.com/archives/013432.php
   3. http://powerlineblog.com/archives/013439.php
   4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=700176
   5. http://powerlineblog.com/archives/013432.php
   6. http://powerlineblog.com/archives/013439.php