Supreme Court justices are notoriously secretive. So it was both unusual and, in the words of the Washington Post's
Charles Lane, "electrifying," when Justices Scalia and Breyer squared off yesterday in a very public forum. They participated in a "conversation" hosted by American University and broadcast on C-SPAN.
As Lane says, "[i]t was the first time in recent memory that two sitting justices representing opposing factions on the court took their disagreements so completely public."
Fascinating tidbits -- and a scary fact or two -- below.
The primary topic of the forum was the role of international law in judicial decision-making. Justice Breyer is a leading proponent of the view that U.S. judges (and justices) should take note of international opinion in interpreting U.S. law. Justice Scalia, unsurprisingly, rejects out of hand the notion that international views should have anything to do with U.S. law. The issue has a great deal of currency, and is particularly relevant in relation to the last remaining undecided case from the Court's October term --
Roper v. Simmons, which will determine whether it is constititional to execute persons for crimes they committed as juveniles. That practice has been rejected by all but three nations (of which the U.S. is one).
In that context, I learned this interesting -- and frightening -- fact:
Republicans have introduced legislation in Congress that would forbid judges to cite foreign case law.
Suffice it to say that I believe such a law would face serious constitutional problems. But that is merely an interesting footnote to the substantive discussion between the Justices, which included the following:
"He will never convert me," Scalia declared -- not that anyone familiar with his conservative record on the court ever doubted that.
...
The two men were a study not only in contrasting legal philosophies but also in contrasting personal styles. Scalia was characteristically intense, frequently shifting to the edge of his seat and punctuating his thoughts with brisk gesticulations. Breyer was all professorial cool, relaxing back into his easy chair and sipping spring water from a long-stemmed glass.
...
Neither justice really conceded any ground to the other, but in one sense Scalia had made a concession simply by appearing. Although he has been on television in the past, he generally avoids the cameras, barring them from speeches he makes at law schools and public-policy groups around the country. It was only 22 months ago that he took some heat for banning television coverage of his acceptance of an award in Cleveland for defending free speech.
On the merits of the question:
Breyer is perhaps the court's leading advocate of the idea that the Supreme Court needs to take greater notice of the legal opinions abroad, making the argument yesterday that the goal is not to make foreign rulings binding on U.S. courts but rather to consider them as a source of information and analysis.
"These are human beings called judges who have problems that are similar to our own," he remarked. "Why don't I read what he says if it is similar enough?"
But conservatives "oppose the concept as an affront to U.S. sovereignty" and have introduced the aforementioned offensive legislation. "And Scalia has led the opposition on the court."
"We don't have the same moral and legal framework as the rest of the world and never have," he said yesterday, adding that the framers of the U.S. Constitution "would be appalled" to see the document they wrote interpreted in light of the views of European courts.
"What does the opinion of a wise Zimbabwean judge . . . have to do with what Americans believe," Scalia asked Breyer, "unless you think it has been given to the courts" to make moral judgments that properly should be left to elected representatives. "Well, it's relevant in this way," Breyer replied. "They are human beings there, just as they are here. You're trying to get a picture of how other people have dealt with it."
"Indulge your curiosity," Scalia joked, "just don't put it in your opinions."
Note the patronizing (and revealing) reference to Zimbabwe.
Breyer insisted that Scalia and other conservatives are overreacting to a few well-publicized cases involving the death penalty and gay rights, when the real importance of international law to the United States is in less controversial areas, such as antitrust trade and intellectual property.
"This world we live in is a world where it is out of date to teach foreign law in a course called Foreign Law," he declared.
Stay tuned. We will hear from the Court in the next week or so in Roper v. Simmons, and the upcoming term promises to be an interesting one as well.