TCS Daily

Courting International Law

By Sandy Schulz - November 4, 2003 12:00 AM

Lost in the hoopla over the Supreme Court's decisions last term on affirmative action and gay rights is the development of a disturbing new legal trend, one hinted at by Justice Sandra Day O'Connor in a speech last week.


Increasingly, it seems, the Court is relying on international law and opinion as the basis for domestic legal decisions. For an institution that puts so much stock in precedence, this move is, well, unprecedented. Worse, it spells potential trouble down the road.


In several of its highest-profile cases, the Court looked for guidance from, among other bodies, the European Council for Human Rights and the United Nations. For the first time, these authorities are being granted as much or more weight as American laws, or even the Constitution, in the Court's decisions. This represents a serious abuse of the Supreme Court's judicial review responsibility, as well as its role as the ultimate arbiter in our legal system.


Writing the Court's majority opinion in the case that overturned Texas's controversial sodomy law, Justice Anthony Kennedy justified his decision partly on the need to conform to enlightened opinion abroad. Homosexual activity "has been accepted as an integral part of human freedom in many other countries," he wrote. "There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent."


Justices Stephen Breyer and Ruth Bader Ginsburg made similar arguments in the decision that upheld affirmative action at the University of Michigan Law School. The justices went so far as to cite the UN Convention on the Elimination of All Forms of Discrimination against Women. Given the fact that for nearly a quarter century, the U.S. Senate has refused to ratify that specious treaty, one wonders why the Court would suggest that Americans should abide by its strictures.


Ginsburg provided insight into this troubling turn of events at a recent speech to the American Constitution Society. "Our 'island' or Lone Ranger mentality is beginning to change," she said. Ginsburg congratulated the Court on being "more open to comparative and international law perspectives."


There is a big difference between being open to new ideas and perspectives -- a necessary qualification for any jurist -- and a willingness to disregard established American law in order to impose those ideas on the public.


Not that I necessarily disagree with the outcomes of some of these decisions; there's no good justification for sodomy laws, after all, and a case arguably can be made for limited affirmative action. Moreover, it's perfectly legitimate for international opinion to inform the laws Congress and the state legislatures pass.


The question is how society arrives at those decisions. Shouldn't they come about through our established democratic process, with elected legislators answerable to the public making laws which are subject to a Constitutional scrubbing?


The problem comes when justices answerable to no one decide they don't like those laws -- not because they offend the Constitution, or because they conflict with other laws, but because they offend the justices' own personal sensibilities (or those of our European cousins). Then they decree solutions they think preferable.


That's problematic enough. What makes this latest trend worse is that, by citing international law as judicial precedent, the Court is hinting that our laws and Constitution may no longer be the supreme law of the land.


The hazards are manifest. Subverting democracy in this way potentially places American citizens under the authority of lawmakers, courts, and bureaucrats anywhere in the world.


Two hundred thirty years ago, we fought a revolution so that Americans wouldn't be governed from Europe. It's high time the High Court was reminded of that bit of American history.


Sandy Schulz lives in Washington, DC.


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