What's the big deal about foreign law in US courts? Part 3

There is, of course, the practical point that Justice Thomas pointed out in Knight v. Florida, that “were there any support [for defendant’s argument] in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.”[7] It is not especially clear that the citation of foreign case law has any real content - whether done here, in the United States, or abroad. Hong Kong legal scholar Yash Ghai has observed, for example, that in Hong Kong “the approach to the use of foreign cases is not very consistent; they are invoked when the support the position preferred by the court; otherwise they are dismissed as irrelevant.”[8]

And not surprisingly, since these cases are being cited outside the context in which they actually function as law. Not only are they inserted into a judicial context in which they have no immediate provenance, no legitimacy outside the bare words quoted, they also are stripped out of the system in which they actually have provenance and legitimacy. They are bare words on paper: this is not the ultimate meaning of cases in judging, but that is what they must finally amount to, stripped out of one system and pressed onto another. It might just be so much window dressing, a rhetorical flourish - which is what Ghai observes it to be.

This rhetorical function is likely more useful to judges outside the United States in giving legitimacy to their decisions than to judges within the United States. If your constitutional tradition is not very long, or is colonially derivative, then appeal to case law outside your own tradition can carry rhetorical weight. Moreover, the stability and democratic credentials of the state of which a court is a branch also matters – something which seems not to have persuaded Justice Breyer in citing to the court in Zimbabwe. The high court of Zimbabwe has been not just an honorable court, but a heroic one. Yet there is something profoundly wrong in citing to a court (no matter how heroic a role it has played in the losing battle for human rights in that country) that, not of its own choosing, is formally a branch of a cruel and tyrannical state. Perhaps Justice Breyer believed that by citing it, he gave it legitimacy as against Robert Mugabe’s wicked regime. I would respectfully suggest it is Mugabe’s regime to which such action lends legitimacy and that Justice Breyer erred in doing so.

The value of rhetoric from outside your own constitutional system is especially a different matter, however, if one looks to two hundred years of continuous constitutional history. It is not American hubris but, rather, conscientiousness, that urges that judges confine themselves to a tradition that carries legitimacy in part because it defines – by confining them – the sources and limits of that legitimacy.

Yet a sense of personal and communal attachments, social relationships, loyalty and social obligation might still make it seem to a US Supreme Court justice both good and politic to cite to those outside one’s own court system. Within the sociology of the US Supreme Court, it is not very clear how much such personal and social factors play a role, and whether they have the power, over time, to turn rhetorical flourishes into actual jurisprudence. Let me be blunter: it seems to me that Justice Breyer, and to a lesser extent Justices O'Connor and Kennedy, want to be seen as peers by the highly civilized, urbane, distinguished Western Europeans sitting on the leading constitutional courts of Europe and the EU. Our justices want to be members of those intellectual clubs, so to speak (having already joined, also so to speak, all the relevant clubs in the US). One way you do that, within the professional circle of judging, is by returning them the favor of citing them. Within the peculiar intellectual activity of judging, it is one of the highest marks of esteem. I don't propose to prove that last statement; nonetheless, it appears to me that there really are issues of personal connection, socialization, peer relationships, at work here.

(Update: Go to post 4, here.)