Globalizing Justice: Critical Perspectives on Transnational Law and the Cross-Border Migration of Legal Norms

2. Foreign Law in American Jurisprudence: An Empirical Study

CHAPTER TWO Foreign Law in American Jurisprudence An Empirical Study FRANCINE BANNER, KEN MILLER, AND DORIS MARIE PROVINE INTRODUCTION The use of legal references from outside the United States in judicial opinions interpreting the U.S. Constitution has become a controversial political issue and, remarkably, even a litmus test of suitability for membership on the Supreme Court in the estimation of some members of the U.S. Senate. The most recent nominees, John Roberts, Samuel Alito, and Sonia Sotomayor, each were questioned about their views on this topic in their confirmation hearings. The House of Representatives expressed its position in a March 2004 resolution complaining that “inappropriate judicial reliance on foreign judgments, laws, or pronouncements threatens the sovereignty of the United States, the separation of powers and the President’s and Senate’s treaty-making authority.”1 This resolution attracted dozens of cosponsors and a warning from its sponsor, Florida Republican Tom Feeney, that judges who base decisions on foreign precedents risk the “ultimate remedy” of impeachment.2 Foreign law is clearly a lightning rod for congressional anxieties about judicial policy making and the growing importance of international law in world affairs. Although this debate is illuminating regarding contemporary Courtcongressional relations, it is extraordinarily misleading as an indication of the 27 28 GLOBALIZING JUSTICE actual role of foreign legal citations in Supreme Court decision making. In the spotlight are judicial remarks in a few cases, as explained in chapter 1, that support controversial interpretations of broad clauses of the Constitution like “cruel and unusual punishment.”What remains obscure is the role that foreign law plays in the overall pattern of decision making on the Supreme Court. How often do the justices consider arguments based on the law of other nations when it is not essential to resolve the case? Are advocates, through their briefs, frequently pressing arguments based on foreign legal authority on the justices to supplement positions based on domestic law? What kinds of legal problems evoke references to foreign law? Are the justices following the lead of advocates in this area or developing their own standards for these references? A number of legal scholars have argued the pros and cons of foreign law citations in constitutional decision making. Our goal is somewhat different. We seek to better understand the empirical reality of foreign law penetration into Supreme Court decision making.To accomplish this goal, we must look at the docket as a whole. We begin by noting that the Court historically has been open to reviewing many kinds of information in considering constitutional issues, including not just social science research and scientific data but also all variety of creative works when they shed light on an issue. It has been liberal in permitting briefs from groups and individuals with no direct interest in a case. Its rules for accepting cases to review on the merits are also liberal, suggesting openness to new issues, including perhaps arguments based on the law of other nations. There is, in short, a fundamentally inductive quality in the Court’s approach to information, as befits constitutional adjudication in a common-law system.3 The Court receives an enormous amount of information from litigants and amici. Detailed briefs are present in almost every case that the Court accepts for review.4 The Court’s openness to information helps it stay abreast of relevant legal, social scientific, and political information not easily found elsewhere while giving the justices an indication of the level of public interest in a case.5 Our research strategy was to study briefs filed in the 2003-2004 Supreme Court term for evidence of foreign law arguments. We chose to examine a full term, rather than selected cases, because it allowed us to get a slice-of-life view of the Court. Those who have focused on individual cases generally have chosen the most controversial ones the Court has decided in recent terms; for example, the juvenile death penalty or rights to homosexual sex. That approach helps to show why citations to foreign law have drawn critical attention from Congress, but it cannot provide a sense of emergent themes in litigation or the frequency with which the Court engages with foreign law in its day-to-day work. Nor does it give a sense of the foreign law arguments arising from the briefs the Court receives. We do not suggest 29 FOREIGN LAW IN AMERICAN...