Justice Ginsburg Defends Use of Foreign Law in U.S. Courts
Our courts, on occasion, have used foreign law in their decisions. A recent article in The New York Times provided comments that were made by Supreme Court Justice Ruth Bader Ginsburg at a symposium at the Moritz College of Law at Ohio State University. It was evident that Justice Ginsburg saw no reason for U.S. courts not to refer to foreign law. “I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” said Justice Ginsberg.
The article stated that “The court’s more conservative members - Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas - oppose the citation of foreign law in constitutional cases.”
In an argument against the practice of using foreign decisions, Chief Justice John G. Roberts Jr. said at his confirmation hearing, “If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he’s playing a role in shaping the law that binds the people in this country.”
During the symposium, Justice Ginsburg referred to a decision by the Israeli Supreme Court concerning the use of torture in obtaining information from suspected terrorists. “The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” Justice Ginsburg said as she described the case. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.'” Justice Ginsburg said the message of the decision was “that we could hand our enemies no greater victory than to come to look like the enemy in our disregard for human dignity. Now why should I not read that opinion and be affected by its tremendous persuasive value?”
