WSJ: "Congress May Fight Court on Global Front"

The Wall Street Journal is reporting that a new front is emerging in the political battles over federal judges: the invocation of foreign law in U.S. court decisions.

The Supreme Court occasionally has cited foreign jurisprudence in interpreting constitutional terms such as "cruel and unusual" and "due process." American conservatives are stepping up criticism of the practice, seeing such reasoning as a backdoor to import liberal European ideas into American law.

"They are basing in part their decisions on the fads, the cultural environment, the laws, the constitutions and the biases of foreigners," says Rep. Tom Feeney, a Florida Republican who is sponsoring a House resolution that would declare "inappropriate judicial reliance" on foreign sources a threat to "the sovereignty of the United States, the separation of powers and the president's and the Senate's treaty-making authority." The same proposal last year drew 73 co-sponsors -- all Republicans -- but never reached a vote. Today, Sen. John Cornyn, a Texas Republican on the Judiciary Committee, is expected to introduce a similar measure in the Senate.
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"It is important for us in Congress to begin to assert ourselves with regard to the disturbing tendency of the court to issue opinions based on what they define to be international opinion," Republican Sen. Jeff Sessions of Alabama, a committee member, said in a radio interview this month.
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The debate gained intensity after the Supreme Court's March 1 ruling ending the execution of juvenile offenders. In addition to citing capital-punishment trends in various states, the majority opinion by Justice Anthony Kennedy noted that China and Iran had disavowed the practice, leaving the U.S. "alone in a world that has turned its face against the juvenile death penalty."
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Justice Scalia, considered a possible successor to the ailing chief justice, has been the most vociferous critic of such views. In his dissent from this month's juvenile-execution ruling, Justice Scalia wrote that "the basic premise of the court's argument -- that American law should conform to the laws of the rest of the world -- ought to be rejected out of hand." He added that, "in fact, the court itself does not believe it" and went on to cite cases where, when it came to conservative causes, the justices have disregarded foreign laws that allow public funding of religious schools, criminalize abortion or permit the use of illegally obtained evidence against criminal defendants.
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I hope that the judiciary committee will pursue this line of inquiry when questioning nominees for the federal bench. As I've written before in this blog and in other places, the use of foreign precedents to interpret the U.S. Constitution is frightening. Indeed it gives the Supreme Court just one more weapon to add to its activist arsenal to use in its attempts to re-make the Constitution in the image of its 5 most liberal justices.