Frank James / Chicago Tribune – 2005-11-11 08:57:44
Gonzales Raps Justices for Citing Foreign Laws
But Scholars Say No Rulings Rely on Them
Frank James / Chicago Tribune
WASHINGTON (November 9, 2005) — Atty. Gen. Alberto Gonzales is traveling to Chicago to take a pointed stand Wednesday against the practice by some Supreme Court justices of citing international law and norms in their opinions.
Conservatives in recent years have condemned justices for using foreign authorities to bolster rulings on such controversial issues as the death penalty and homosexual relations.
But some legal scholars say such criticism is overblown and misguided because justices, while citing international law in a few cases dealing with strictly domestic issues, haven’t based decisions in such cases on foreign legal precedents.
“Reliance on foreign law … threatens to unmoor the court from the proper source of its authority for judicial review and place in jeopardy the reverence Americans have for the laws and the institution of the Supreme Court,” Gonzales says in a prepared text the Justice Department provided the Tribune. He is scheduled to deliver the speech Wednesday at the University of Chicago Law School.
“That would be a tragedy — and not just for our legacy of free and popular government by law,” Gonzales said of the justices’ use of foreign citations. “Another casualty may well be the legitimacy of the court itself and the public’s willingness to accept its judgments.”
Gonzales cited Lawrence vs. Texas, in which the high court in 2003 struck down as unconstitutional a Texas sodomy law under which two men were convicted for engaging in sex in a Houston home.
The advance text of the attorney general’s speech said that case was an example of one problem with “relying” on foreign law: The practice allowed Supreme Court justices to cherry-pick from among the foreign laws that helped them support their views. He did not single out any justices for criticism.
The 6-3 Texas decision was written by Justice Anthony Kennedy. Gonzales said the ruling “rested on the [Constitution’s] due process clause and the court considered foreign law in that decision.
“Many nations also restrict speech, particularly hate speech, far more than the Supreme Court’s 1st Amendment jurisprudence would allow. But the court has yet to consider these foreign laws to be a basis for re-evaluating its jurisprudence.”
Gonzales acknowledged that in cases involving treaties or international business it was necessary for the court to consider international law.
Some scholars saw Gonzales’ criticism, and that of conservatives generally, as wrongheaded and politically inspired. They said few experts would disagree with Gonzales that the court should decide cases based on US laws and the Constitution.
Sean Murphy, an international law professor at George Washington University in Washington, said justices have referred to international law in just a few instances, and only after the court had analyzed the Constitution based on US history, precedents and state laws.
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