Another recent addition to Supreme Court confirmation hearings is a focus on the role of foreign law. Last year, Justice Sotomayor got many questions on whether she would cite foreign law.
What’s the problem?
Some Justices have cited international law in ruling in favor of parties challenging government action on constitutional grounds, particularly in cases based on the Eighth Amendment’s prohibition against cruel and unusual punishment. Many legal conservatives are outraged by this practice, arguing that US courts should make their decisions based on the Constitution and decisions of US courts, and should not even look at decisions by foreign courts.
Kagan refused to rule out foreign law entirely, saying that judges should for “good ideas” wherever they can find them–law reviews, books, state court decisions, or foreign court decisions. That helps judges learn about how different people think about legal issues.
But foreign law has force in only a very small category of cases, she says, citing one involving immunity for former officials of foreign governments in which the federal government’s brief cited cases showing how other countries address the issue.
Later, Senator Schumer returns to the same question, making clear that the Court cites law review articles–even though they have no binding force–and that there is nothing wrong with treating foreign courts’ decisions in the same way.
