by Matt Barr

Justice Ginsberg, International Jurist of Mystery

An unsurprising story in the New York Times today.

"Judges in the United States are free to consult all manner of commentary," she said in a speech to several hundred lawyers and scholars here Friday.

She cited several instances when the logic of foreign courts had been applied to help untangle legal questions domestically, and of legislatures and courts abroad adopting United States law.

Fears about relying too heavily on world opinion "should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey," Justice Ginsburg told members of the American Society of International Law.

A mild and modest proposal, with two troubling potential consequences. Yes, the Supreme Court is certainly free to consult and think about how other nations have worked through legal issues. The first problem is that this can lead fairly easily to reliance on international decisions as precedent, which, to my mind anyway, would be an impeachable offense.

The second is that remarks like this have the potential to be misconstrued on both sides. Conservatives and originalists are likely to get hyper over the idea that foreign law matters to the U.S. Supreme Court. Outfits like the Times are likely to say things like this:

Justice Ruth Bader Ginsburg of the Supreme Court embraced the practice of consulting foreign legal decisions on Friday, rejecting the argument from conservatives that United States law should not take international thinking into account.

"Should not take international thinking into account"? What a remarkable way to tell people who already believe so that conservative Court-watchers are the sort who put their fingers in their ears and go LA LA LA when someone mentions a foreign case. Gosh, New York Times, you sure burned us.

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