It’s interesting that the judges find foreign law to be indispensable in the Eighth Amendment criminal law context, yet completely irrelevant in other areas of criminal law. For example, our Exclusionary Rule, the mandatory omission of illegally obtained evidence in court, has almost no parallel in the rest of the world. Yet the justices did not see fit to consider this foreign consensus when they ruled that all states must enforce the Rule. If the Court was “guided” to abolish the death penalty for juveniles based in part on foreign law, then why not the Exclusionary Rule? The answer is that justices don’t turn to foreign law for “guidance;” they turn to it for justification.
Justice Stephen Breyer, a regular defender of the practice of citing foreign law, says it’s particularly useful to do so when considering human rights issues. In fact, “advancing human rights” is often the siren song of other justices who defend the practice. Yet these justices do not always put this supposed principle into practice.
Take the issue of abortion -- a human rights issue to those on both sides of the debate. Justice Antonin Scalia has pointed out that the Court said “not a whisper” about foreign law in its recent abortion cases. Perhaps this is because the United States is one of only six countries that have embraced a right to abortion on demand at any point prior to viability.
At the heart of this practice is an unsettling disregard for the bedrock American principles of separation of powers and self-government. The people’s representatives may look to foreign countries while crafting laws in order to see how other nations have addressed similar policy problems. Judges, on the other hand, shouldn’t try to devise solutions for such problems. Their role is to apply the laws and hold them accountable to the Constitution.
In order to determine whether Elena Kagan might be the next justice to wield the tool of foreign law, senators must dedicate considerable efforts to probing her views on this most important issue. Their duty to uphold and defend the Constitution requires nothing less.