Judge Sotomayor on Foreign and International Law

Yesterday, in response to a question from Sen. Coburn (R-OK) asking whether “there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes,” Judge Sotomayor gave what appeared to be an unambiguous answer. As the Post‘s transcript has it:

Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.

On the face of it, this appears to be a repudiation of her statement to the ACLU in Puerto Rico in April 2009, that:

to the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system.

But in reality, the two statements are compatible, and Judge Sotomayor has repudiated nothing. It is important to observe that, by its very nature, the Supreme Court deals with “unsettled issues” in the U.S. legal system: well-settled matters never reach the Court. So her original claim was that international and foreign law do not supply controlling precedents, but “will” affect how Justices think about the cases before them.

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Judge Sotomayor on Foreign and International Law

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