The dangers of relying on international opinions

Collin Levy writes today in the WSJ about Sotomayor's advocacy of looking to international judicial opinions.

In a speech to the American Civil Liberties Union of Puerto Rico in April, Judge Sotomayor explained that "ideas have no boundaries," and that "international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system." To discourage the use of foreign or international law, she added, would "be asking American judges to close their minds to good ideas."

We've seen some recent decisions where Supreme Court justices have referred to international opinions in their majority decisions in striking down capital punishment for those under 18 in Roper v. Simmons and in striking down laws against sodomy in Lawrence v. Texas.

Cases like Roper and Lawrence fit squarely into that area of overseas law most sought after for borrowing by the more liberal justices of the court -- that is, the realms of moral or social policy. The problem with such inspiration is that it is inherently subjective and arbitrary. The laws of the world are infinitely diverse, and praising one necessarily condemns another. Cherry-picking desirable law introduces the very kind of legal chaos our Constitution was designed to prevent. If one judge may look to the courts of Western Europe for expansion of liberal thoughts on human rights, why may another not look to decidedly less liberal ideas?

Iran allows women who appear without a hijab on the streets to be lashed 74 times. China limits families to bearing one child. Even the democracies of Western Europe have laws that differ broadly from ours. Few countries, for instance, share our rules protecting the rights of the accused, or have the U.S.'s constitutionally mandated separation of church and state.

In his dissent from the court's reliance on foreign law in Roper v. Simmons, Justice Antonin Scalia wrote that "The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking and ignore it otherwise is not reasoned decision making, but sophistry."

Should we abandon the exclusionary rule just because most other countries don't have one? Even our abortion laws tend to be less restrictive than other countries, including European ones. We didn't see these same fans of international standards looking to the rest of the world when it came time to rule on partial birth abortion. Perhaps that is because the majority of countries have limitations on when abortions can be done during a pregnancy. Somehow that standard seems less influential when it doesn't support the policy that the justices want to implement. That is why it is so dangerous, as Levy says, to cherry pick which international standards they want to apply and when they want to look at those standards and when they want to close their eyes to them. That is not what American judges should be doing. That is fine for the policy-makers, the legislator and executive, not the judge. Let them survey international standards when they craft their laws. But the judges can't hopscotch around international law codes to fish out supporting statutes whenever they support their preferred position and then ignore them when they don't. And it is telling that Sotomayor is ready to endorse such a selective approach to jurisprudence.