Very interesting, "debate" on C-SPAN (Here's the link to the C-Span page look on the second column from the left under Recent Programs to see the video online.) yesterday, from NYU, between U.S. Supreme Court Justices Scalia and Breyer. The issue was whether or not the Supreme Court should look to the decisions of courts in other countries when deciding its cases. The reason it's an issue is because the Supreme Court has already started doing this. Most famously in it's decision, Lawrence v. Taylor declaring Texas' sodomy laws unconstitutional. In that case the Supreme Court's decision references a decision by the European Court of Human Rights.
Scalia had the better of it, pointing out that when some Judge wants to change the law and can find nothing in the constitution, or the decisions of the courts of the United States, or the statutes of the U.S. Federal or State governments to support the change, the judge could still appear to be making his descision in a quite lawyerly fashion by basing his decision on the ruling of a foreign court with the citations all properly formatted. It was pretty funny on T.V. but maybe you have to be a lawyer to really get the joke.
Breyer tried to put if all off as an over-reaction saying that the decisions of foreign courts were not controlling but were used just for informational purposes. That the Judges in foreign jurisdictions were dealing with the same difficult questions and the people of other countries were humans too and their take on in might be helpful.
Scalia pointed out that in the Lawrence decision the court had indeed cited European courts but had ignored the rest of the world notably Islamic and South American courts who's rulings about sodomy were quite different from those of the European Court For Human Rights. The point Scalia was making is that Breyer was being disingenuous to say that the reason for looking at foreign decisions is to see how other humans around the world deal with these issues when they had ignored all the other humans who agreed with the Texas sodomy laws and used only those decisions which agreed with the Supreme Court justices views with respect to sodomy laws.
While I think that Scalia got the best of the debate I think Breyer's side will, absent congressional intervention in the way of laws restricting the courts' ability to use such cases as "authority," eventually win out. The decisions of U.S. courts are based to a great extent on "Common Law." Common law basically means judge made law. You could detect in Breyer's responses an attempt at coming up with a theory of world-wide "common law." It would be very easy for American lawyers and judges to accept this world-wide common law as being as authoritative as English common law is now.
This is one of those areas that happen way below the radar of most Americans but end up having an overwhelming impact on our lives. Imagine the U.S. Supreme Court basing it's decisions regarding any difficult social issue on the decisions of the much, much, more leftist than the average American citizen, European Court of Human Rights.
Go watch the video.