Justice Antonin Scalia was a towering figure of conservative constitutionalism. But foreign jurists aren’t likely crying right now.
- By Rosa BrooksRosa Brooks is a law professor at Georgetown University and a senior fellow with the New America/Arizona State University Future of War Project. She served as a counselor to the U.S. defense undersecretary for policy from 2009 to 2011 and previously served as a senior advisor at the U.S. State Department. Her most recent book is How Everything Became War and the Military Became Everything.
Prepare yourself for pious proclamations of sorrow. Justice Antonin Scalia, stalwart conservative voice on the U.S. Supreme Court since 1986, is dead! Flags will be at half-mast, and for a few days, at least, everyone will pretend to consider Scalia’s death a terrible loss to the Court, the country, and the global legal and judicial communities.
The global legal and judicial communities, however, will mostly be indulging in joyful private choruses of “Ding, Dong, the Witch is Dead.” Or maybe not so private.
There was no love lost between Justice Scalia and foreign jurists. Scalia was famously dismissive of foreign and international law, which he considered good enough for, well, foreigners — but not for the great United States. “I doubt whether anybody [in the United States] would say, ‘Yes, we want to be governed by the views of foreigners,’” he scoffed in 2005.
A decade later, his views hadn’t mellowed much. Foreign laws can “never, never be relevant to the meaning of the U.S. Constitution,” he told a law student audience in May 2015, because “who cares? We have our laws, they have theirs.”
Scalia’s wrath fell frequently upon those justices who demonstrated a distressing tendency to offer “a decent respect to the opinions of mankind,” as the Declaration of Independence so unpatriotically put it. Justice Stephen Breyer, for instance, triggered apoplectic fits in Scalia by insisting that the interconnected “nature of the world itself… demands” that U.S. judges read and reflect on foreign legal rules and precedents. Justice Sandra Day O’Connor aggravated Scalia by taking a similar view: when judges look to international and foreign law to resolve what some might see as “domestic issues,” she argued, it will “not only enrich our own country’s decisions; it will create that all-important good impression.”
Scalia was not interested in making a good impression. When Justice Anthony Kennedy declared, in a 2005 decision barring the death penalty for juveniles, “the opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions,” Scalia was irate: Such views, he wrote in a dissenting opinion, took “the prize for the Court’s most feeble efforts” and “should be rejected out of hand.”
Scalia’s resolute refusal to consider foreign or international law relevant to U.S. constitutional questions did not endear him — or the U.S. Supreme Court, on which he was so influential — to legal communities outside the United States. To non-Americans as to Justice Kennedy, Scalia’s contempt for foreign and international law often seemed to have a “know-nothing quality,” and the rarity with which the Court engaged seriously with non-U.S. legal precedents took a toll on its international prestige.
By “fail[ing] to make use of an important source of inspiration, one that enriches legal thinking, makes law more creative, and strengthens the democratic ties and foundations of different legal systems,” complained Aharon Barak, former chief justice of the Israeli Supreme Court, the U.S. Supreme Court “is losing the central role it once had among courts in modern democracies.” Australian High Court Justice Michael Kirby was more blunt: “America is in danger of becoming something of a legal backwater.”
Never fazed by criticism, Scalia rarely passed up an opportunity to offend non-U.S. audiences. Speaking to international jurists in Canada in 2007, Scalia took umbrage when a Canadian judge made a slighting reference to “security agencies” that seem to “subscribe to the mantra, ‘What Would Jack Bauer Do?’”
Viewers may recall that Jack Bauer, hero of the Fox drama 24, tended to resort to torture whenever an interrogation subject declined to open up. Scalia thought this was just fine: “Jack Bauer saved Los Angeles,” he explained to the assembled international judges. “He saved hundreds of thousands of lives!”
In 2014, Scalia shared his personal “What Would Jack Bauer Do?” philosophy with a Swiss audience. “The [U.S.] Constitution says nothing whatever about torture,” he informed a Swiss radio interviewer. “I don’t know what provision of the Constitution [torture] would contravene…. Listen, I think it is very facile for people to say, ‘Oh, torture is terrible.…’ You think it’s clear that you cannot use extreme measures to get [information about the location of a bomb in Los Angeles]? I don’t think that’s so clear at all. And once again, it’s this sort of self-righteousness of European liberals who answer that question so readily and so easily.”
Goodbye, Justice Scalia. The Supreme Court will be a quieter, more cosmopolitan place place without you. But Jack Bauer’s sure going to miss you.
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