Quoting former U.S. Appeals Court Judge Patricia Wald, Ginsburg said, "We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of 'common denominators of basic fairness governing relationships between the governors and the governed.'"
The sort of analysis Ginsburg is describing here is not judicial, but legislative. There is nothing in our Constitution that bars members of Congress from looking at foreign laws to see what works and what does not, what reflects American values and what does not. As long as they don't exceed the constitutional limits on Congress' own authority, they may, if they wish, propose legislation mirroring a foreign law to see if they can win a majority for it and persuade the president to sign it.
Congress, for example, could clone Russia's 13 percent flat tax, arguing, as Ginsburg or Wald might say, that Russia's tax plan embodies Congress' vision of the "basic fairness governing relationships between the governors and the governed."
It would not matter if Ginsburg preferred, say, Iran's tax system to Russia's. The Constitution, as written, does not authorize her to trump Congress' preferences in this area.
It is when Ginsburg cites specific Supreme Court decisions she believes were beneficially influenced by foreign courts that the real heart of the matter is revealed: On certain cultural issues, she likes other peoples' values better than those Americans have expressed through the democratic process. Some voters in this country, she clearly believes, just didn't get it right on same-sex sodomy and the death penalty.
"On respect for the opinions of (human)kind," she said of the opinion declaring same-sex sodomy a right, "the Lawrence Court emphasized: 'The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries.'"
"Roper v. Simmons presents perhaps the fullest expressions to date on the propriety and utility of looking to 'the opinion of (human)kind,'" she said. "Holding unconstitutional the executions of persons under the age of 18 when they committed capital crimes, the court declared it fitting to acknowledge 'the overwhelming weight of international opinion against the juvenile death penalty.'"
Justice Ginsburg has every right to embrace foreign opinion on these issues. But if she wanted to act on those opinions officially, she should have resigned from the court and ran for a state legislature first.