Thursday, March 16, 2006

Ginsburg Defends Use of Foreign Law, Blames Republicans for Encouraging Death Threats

It is rare that Supreme Court Justices make public statements about the way they like to decide cases (outside the written opinions themselves, of course), and even rarer when they make a point of attacking the other branches of government. But Justice Ruth Bader Ginsburg has just gone after Republicans in Congress for trying to limit the ability of she and other liberal members of the Supreme Court to use foreign law to illegally shape U.S. policy. And perhaps the time is ripe for such a discussion, because last year, the Supreme Court generated no small degree of controversy over the rulings it handed down.

The New London v. Kelo decision (where the Court held that the government can procure private property through eminent domain powers for private contractors who can improve the property and the tax base) and the Roper v. Simmons decision (holding that the death penalty was unconstitutional if used against minors, freeing such misguided scamps as D.C. sniper Lee Malvo from the penalty a jury had imposed for his depraved heart crimes) were breathtaking acts of jusdicial activism that deserved the criticism they received. But Roper was most surprising because the Supreme Court relied on foreign law to reach their decision. The majority of the Court, eager to bring the United States closer in line with the legally chic Europeans presumed that Europe's law was actually a step forward, and with a few strokes of a pen, five people dragged the remaining 280 million of us along with them.

And so to combat the efforts of some Justices to change state policy enacted by Congress and the states, several bills have been proposed in Congress to prevent the federal courts from referring to foreign law as a basis for their decisions. And, per the Constitution, it is the prerogative of Congress to limit or expand the powers of the federal courts--if they are to be expanded--beyond the enumerated terms of the Constitution. But Justice Ginsburg, in a posting on the Supreme Court website, defends the use of foreign law. And she is entitled to her opinion. But she crosses the line of polite discourse when she accuses Republicans who are offering such legislation of encouraging death threats against her.

After describing the bills that have been offered, Justice Ginsburg continues:

These measures recycle similar resolutions and bills proposed before the 2004 elections in the United States, but never put to a vote. Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizable support. And one not-so-small concern - they fuel the irrational fringe. A personal example. The U.S. Supreme Court's Marshal alerted Justice O'Connor and me to a February 28, 2005, web posting on a "chat" site. It opened:

Okay commandoes, here is your first patriotic assignment . . . an easy one. Supreme Court Justices Ginsburg and O'Connor have publicly stated that they use [foreign] laws and rulings to decide how to rule on American cases.

This is a huge threat to our Republic and Constitutional freedom. . . . If
you are what you say you are, and NOT armchair patriots, then those two justices will not live another week.

Nearly a year has passed since that posting. Justice O'Connor, though to my great sorrow retired just last week from the Court's bench, remains alive and well. As for me, you can judge for yourself.

It's a neat little bootstrap argument: disagree with me and you bear the responsibility for encouraging and inciting to violence the antisocial nuts who may also disagree with me. It's designed to thwart disagreement, which is the hallmark of the ACLU left from which Ginsburg hails. Dissent against the left encourages hate, dissent against the far to the nth power right enhances choice and freedom.

Now to be fair to the former ACLU chief counsel turned Supreme Court Justice, the use of foreign law is not an unusual thing in America. We've done it for centuries. And comparative studies are certainly helpful to those of us who practice. We use holdings in other states to encourage similar holdings in our own. We compare statutes from other states and how other American courts have treated them. It's a legitimate means of persuasion, but that's all it is. It has no binding effect. But in order to use foreign law for comparative purposes, we need to pay attention to the laws being compared and the societies where such laws arise.

Europe is not like America, and that's a very good thing. We have a much more market-driven economy, and theirs is much more regulated. Our mores are different than theirs which many Americans find to be uncomfortably lassiez-faire. We have different values than they do. We are a more ecclesiatical people than they are. Put bluntly, all those pretty churches over there don't get nearly as much use as the really run down ones here--they are a secularized people. And that's the reason we are separate nation-states with separate legal systems. It's also the reason that state borders within our nation still have relevance. The states are separate sovereigns from the federal government--subject to it's supremacy, but free to make social structures of their own. Which is why Massachusetts law and Utah law would be irreconcilable depending upon the area of law we're talking about. Which is why the Roper decision, among other reasons, just doesn't make sense.

Rather than comparing similar statutes and saying that other courts in other nations have interpreted their laws on the same point in a particular manner, they simply said that this is the law in those nations, implied that there was something better about those legal systems than this one, did some new factfinding with regard to psychological studies (appellate courts cannot do new factfinding that the trial courts didn't do below), and then concluded that it was time to bring ourselves more in line with Europe. Which is a lot like saying that since the Soviets were able to ensure uniform health care and market opportunities that we need to take a step forward to be more like them--ignoring the fact that those health care and market opportunities were uniformly worthless.

So in an effort to be more secularist, there are few better models than western Europe. And don't for a second think that Ruth Bader Ginsburg doesn't want a more secularized America and a place where immorality becomes the new morality. And now she is mad that her tool--comparing our laws with the Europe she so envies--is under attack.

But the justice might want to remember that Europe has for the past 100 years been the most fertile ground for anti-semitism, and was the home of the Nazi and Soviet holocausts.

So the Justice may want to be reminded that she is not on the Supreme Court to change our laws, but rather to apply them as they are written. We have a Congress to change law. We don't need a dictatorial ACLU lawyer violating her mandate and making new laws by replacing ours with laws made by people half a world away who don't vote in our elections and who don't share our values.

And going back to that wonderful continent for which the Justice yearns, and the not so wonderful death threats against her, it was also state policy to stifle criticism by associating the opposition with criminal activity. And likening the legal and Constitutional acts American people's elected representatives in Congress with extremist criminal activity in order to thwart their efforts to oppose her anti-democratic and illegal means of changing our law is deplorable.

There comes a time when people become so old and stuffed with notions of entitlement to power that they behave in such a disingenuous manner. Given the Justice's affliction, it's time for her to retire.

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