One example glares out from the Supreme Court's decision prolonging racial preferences (Grutter v. Bollinger). In a concurring opinion, Justices Ruth Bader Ginsburg and Stephen Breyer cited the International Convention on the Elimination of All Forms of Racial Discrimination. Uh-oh. The convention endorses "special and concrete measures to ensure the adequate development and protection of certain racial groups."
That doesn't sound so bad, but when you translate from U.N.-speak to English, it turns out to mean that we need double standards: non-whites will be favored, whites will be disfavored. It won't last forever, though. Ginsburg and Breyer explain that this system of planned inequality, in the words of the convention, "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they have been taken have been achieved." So Caucasians will be unequal under the law only until exact group equality breaks out or until hell freezes over, whichever comes first. Two Supreme Court justices signed on to this?
Justice Anthony Kennedy spotted another emerging world consensus in the Texas sodomy case. He argued that America must bring itself in line with the new thinking of modern Western civilization. I think sodomy laws are legally and morally unsupportable. But Kennedy's argument relies on dubious and selective use of amateur social science -- many nations and cultural traditions retain their historical opposition to homosexuality, but Kennedy focuses only on the ones that don't.
Even stranger was Kennedy's implicit argument that the court must divert its gaze from American tradition and law and instead copy the conclusions of European courts and elites. Justice Antonin Scalia's dissent made the obvious point: It isn't the Supreme Court's job to "impose foreign moods, fads or fashions on Americans."
Justice Breyer is perhaps the court's most zealous advocate of finding legal answers abroad. In a case focusing on allowable delays of execution (Knight v. Florida) he said he found "useful" court decisions on the matter in India, Jamaica and Zimbabwe. We're getting our legal cues from Zimbabwe?
In a speech in Toronto in 2000, Judge Robert Bork said Justice Breyer's Jamaica-India-Zimbabwe citation was "risible." Bork added another sensible comment: If the views of foreign nations are relevant, they should be relevant to legislative debates, not in judicial interpretations of the Constitution.
On ABC's "This Week," Justice Breyer said a challenge for the next generation will be "whether our Constitution (fits) and how it fits into the governing documents of other nations." There's a sense in which this is obvious. Globalization and mass immigration are highlighting clashes between judicial systems. But there's an alarming interpretation, too: the suggestion that the U.S. Constitution may have to be adapted to foreign governing documents.
The background for this is that the legal elites of America and other Western nations attend the same conferences and swim in the same intellectual waters. At the conferences, Americans, including our Supreme Court justices, are attacked as insular and parochial for not adopting European and new international or transnational standards.
This pressure is not just to pull away from American law and the Constitution. Often it is also a push toward standards out of sync with American traditions of liberty. The European version of free speech is so frighteningly narrow that a major push is under way to criminalize criticism of homosexuality.
The courts of several Western nations have moved to interpret their own constitutions in the light of international conventions, U.N. treaties and other similar materials. This is a dicey proposition because so much of these materials are produced by U.N. bureaucrats and powerful U.N. non-governmental organizations (NGOs) with little publicity and almost no democratic input.
The NGOs, most of them American, are predominantly far out on the cultural left. They specialize in producing non-binding and apparently harmless documents that they work to convert into explosive and legally binding texts that undermine national sovereignty and democratic procedures. This is not a system that deserves a nod of respect from Supreme Court justices.