Should U.S. courts listen to international law?

Tim Wu pens an interesting but incomplete Slate essay on a growing trend — the citation of international law and foreign law in U.S. Supreme Court decisions. The highlight:

Legal “comparativism” in the Supreme Court is staging a comeback. In Atkins v. Virginia, the 2002 decision in which the court barred the execution of the mentally retarded, the following sentence appeared in Justice Steven’s opinion: “Within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” And Lawrence, last year’s sodomy decision, also used foreign materials, albeit to refute international claims made in an earlier case. In 1986, then-Chief Justice Warren Burger (a great xenophile) had argued in Bowers v Hardwick that bans on gay sex were “firmly rooted in Judeo-Christian moral and ethical standards.” In Lawrence, Justice Anthony Kennedy pointed out that whatever ancient practice might have been, England in particular (perhaps under the influence of David Beckham) and Europe in general had changed their minds. Even the current chief justice, William Rehnquist, has dabbled in comparativism—discussing the Dutch experience in the course of rejecting a right to assisted suicide in 1997’s Washington v. Glucksburg. It’s become a bit of a Punch and Judy show: Just about every time the court cites foreign materials, Scalia and/or Clarence Thomas dissent. In the words of Scalia, “The views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.” Or, to quote Thomas on the subject, “This court should not impose foreign moods, fads, or fashions on Americans.”

Wu argues that Scalia and Thomas are overreacting, comparing the citation of foreign experiences as the legal equivalent of a 50 Cent shout-out to Bob Dre:

[The Supreme Court] has not deferred to or followed foreign cases in statutory or constitutional cases. Scalia and the House Republicans, for effect really, are mixing up the difference between listening to foreign ideas and obeying foreign commands. Scalia is like the prohibitionist who confuses drinking with alcoholism. His narrowly correct point stigmatizes a range of reasonable, indeed salutary, judicial behavior.

Wu has a valid point to make — the Supremes aren’t in the thrall of Eurocrats. Still, one suspects that Wu is sanguine in part because the Court is citing foreign law that is consistent with modern liberalism. One wonders what the reaction would be if the foreign legal shout-outs were for less desirable principles the conservatism of the Official Secrets Act or the more statist bent behind U.N. treaties on economic and social rights. The citation of foreign legal norms is not merely decorative — it’s strategic as well. As further evidence that Slate has cornered the popular market on interesting Supreme Court writing, go read Dahlia Lithwick’s quickie on the Supreme Court’s federal marshals. UPDATE: Jacob Levy reminds me that he penned an excellent TNR Online essay five months ago on this very topic. Levy draws an appropriate distinction between appropriate and inappropriate citations of foreign law:

[I]t seems perfectly reasonable to… allow decisions from other common law jurisdictions (England, Scotland, Canada, Australia, etc.) to act as persuasive precedent–which is subordinate to any on-topic binding precedent from one’s own jurisdiction–just as a decision from a Delaware court can influence a decision on a similar question in New York. American law, including the American constitution, is built on common law concepts; and part of the common law mode of reasoning is for judges to be persuaded by interpretations and arguments offered by other judges…. To look at how other comparable systems address “a common legal problem,” and at their reasons for doing so; to consider whether they are right or wrong, whether their reasons are persuasive; to engage not with the alleged sentiments of the world community but with the judicial arguments of other courts trying to interpret constitutional principles–this is the right way to proceed.

Check out Ken Kersch’s “Multilateralism Comes to the Courts” in the Winter 2004 issue of Public Interest (hat tip to Jeff Singer)