I’ve applauded Chief Justice Roberts successful attack on so-called international law. Roberts’ victory is all the more encouraging because of the division of the Supreme Court on a closely related matter: foreign law.
Foreign law, which has been attacked by the Attorney General and Justice Scalia, differs from “international law” in that it is actually law, somewhere. While there was once a real international law based on the Catholic Church, in modern times “international law” means at best the socialization of states and at worst a strange morality.
When applied to cases in the United States, both are threats to our freedom and democracy. Freedoms we hold dear, like free speech, are routinely ignored by other countries like China and Germany. At best, an “honest” use of foreign laws by the Courts would lead to a lessening of freedoms in the United States, as are laws are harmonized with the less-free acts of foreign parliaments and potentates.
However, those lovers of “foreign law” are not so honest. They wish to use foreign law to get opinions that would be impossible otherwise. For example, liberal justices like Ruth Bader Ginsberg will use European criminal law (which is more liberal than American criminal law) to liberalize our justice system, but have not (yet) used European abortion laws (which are more conservative than American abortion laws) to make life safer for the unborn.
Don’t take my word for it: take the Washington Post‘s:
At the same time, Justice Antonin Scalia offers some reasonable criticisms of how the court has used foreign precedents — that is, selectively, when foreign law supports results that the court cannot justify based on American authorities alone. As Justice Scalia points out, justices cite foreign precedents in capital cases, where European law is far more liberal than American law, but not in abortion cases, where it is more restrictive.
Ginsberg, recognizing her weak position, has compared those who oppose permissive use of foreign laws to the old Apartheid government of South Dakota.