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Speaking at the School for Advanced International Studies at Johns Hopkins University yesterday, Justice Breyer defended references to foreign law in Supreme Court decisions. The sound bite being tossed around the blawgosphere today was when he said “I can read what I want”, but of course there was far more to his argument than that. He went on to say “If I see something written by a man or a woman who has a job like mine in another country, and who is interpreting a document somewhat like mine and who in fact has a problem in front of the court somewhat like mine, why can’t I read it, see what they’ve done? I might learn something.”
There is no doubt that the courtrooms of Europe contain great thinkers who can offer us insights into the philosophical underpinnings of the law, even though the context differs. Philosophy, whatever its source, helps understand meaning. It gives us tools to interpret ideas and can help form a framework for discussion. The Constitution itself was based on the philosophies of Hobbes, Locke and Rousseau among others. Justice Breyer made the point that foreign law is not controlling but that there is nothing wrong with learning what other legal scholars think about an issue. It is right and proper that those who make momentous decisions that reverberate throughout our society reach for insight from as many sources as possible so long as the final decision is found within the framework of the Constitution. But what Breyer didn’t address head on is the appropriateness of including those arguments in decisions issued by our own Court.
Is there a difference between quoting Plato, Socrates and Voltaire and citing a case from the European Court of Human Rights? Justice Scalia certainly think so. In his dissent in Lawrence v Texas, Scalia wrote “the court’s discussion of these foreign views …  is … meaningless dicta. Dangerous dicta, however, since this court should not impose foreign moods, fads, or fashions on Americans.”
