In its flattering piece on Justice Ruth Ginsburg’s feisty determination to remain active on the Supreme Court, the Washington Post quotes her on the topic of judges’ use of foreign law:
“There is perhaps a misunderstanding that when you refer to a decision of [foreign courts] that you are using those as binding precedent,” she said.
But she added: “Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article from a professor?”
Perhaps she is playing coy, but she must understand the fundamental difference, right? Law school articles cited by the Court generally address matters of U.S. law, and the Constitution specifically. They may contain research on the meaning of Constitutional text or address conflicts between precedents. But they are worth reading to some degree or another because they shed light on the statutes and Constitution of the United States. The latter is the document which grants the Court its authority and remains the supreme law of the land.
Foreign law is entirely irrelevant to the exploration and determination of the Constitution’s meaning, unless. . . well unless you think the Constitution has no real meaning and is a trampoline from which the judges may launch themselves into all manner of argument, investigation, and philosophical debate. If you think it is impossible or simply foolhardly to determine what the Constitution means (and think your job is to look for intriguing ideas, interesting notions, and cultural trends to impose on the populace) then foreign law — or novels for that matter — are perfectly relevant.
But which law? Saudi Arabian on women’s rights? I think Justice Ginsburg would recoil in horror. Irish or Italian law on separation of church and state? Preposterous. It becomes obvious that foreign law soon devolves into a sort of grocery shelf from which individual justices can pluck whatever looks “good” and disregard the rest.
The entire country is relieved that Justice Ginsburg’s health is holding up. She remains a role model for many who see her life as a great American success story. That doesn’t mean her ideas are worth following.