Justice Ginsburg and the Supreme Court of the World

Sounds like the Big cheese admires Weeramanty,” by Mark Safranski, tdaxp, 26 September 2005, http://www.tdaxp.com/archive/2005/09/23/use-of-force.html.

Ginsburg discusses court integrity, Congress on campus visit,” by Meredith Grunke, Daily Nebraskan, 10 April 2006, http://www.dailynebraskan.com/media/storage/paper857/news/2006/04/10/News/Ginsburg.Discusses.Court.Integrity.Congress.On.Campus.Visit-1803033.shtml?norewrite200604101541&sourcedomain=www.dailynebraskan.com.

Note: My source for this post is the Daily Nebraskan, the occasionally incoherent student publication of the University of Nebraska – Lincoln. Most of their time, such as with their publication of my dialog with Dr. Frances Kaye over ROTC, they get things right. Occasionally they don’t. I am assuming that their reporting of a recent speech by a Supreme Court justice on our fair campus is accurate.


Ruth Bader Ginsburg wants to take over the world!

Ginsburg’s use of foreign laws in her decision has become unpopular. Attorney General has criticized the use of foreign laws, while the Washington Post criticized Ginsburg’s reasoning. Given the emphasis on American laws shown by her colleagues Justice and Chief Justice , you would imagine Justice Ginsburg would give in and do her job. Nope.

This past Friday, Ginsburg came up with a new reason to use foreign laws in our Courts:

In both her talks, Ginsburg mentioned the Supreme Court’s reference to international law, the exercise of executive power in times of war and recent confirmations to the court.

The justice also fielded questions and spoke in her lecture about the court’s references to foreign law when making decisions – a practice she believes is widely misunderstood. Congress has been looking into measures to curb the court’s references to decisions made by foreign countries.

If we aren’t willing to read and consider what our counterparts abroad are writing, … they will be discouraged from listening to us,” she said, pointing out that court decisions made in other countries are not binding to the U.S.

It appears that Ginsburg is saying that if the US Supreme Court does not use laws from other countries, those countries will not rely on the US Supreme Court.

This statement makes no interest if Justice Ginsburg is interested in interpretating the Law of the Land, or if her primary loyalties are to US Law and the US Constitution. However, it makes perfect sense if one sees her as part of an international league of justices primarily interested in see their words run the world.

In the words of Mark Safranski, these people

would like to establish as a legitimate authority is effectively a ” Transnational Progressive Ulema” where IL scholars and certain NGO and international bodies collectively float above nation-state sovereigns and hand down rulings much they way Ayatollah Sistani or Sunni scholars issue fatwas

This approach is undemocratic, because it removes the legislative (much less the diplomatic!) function from the Congress and gives it to the Courts. It’s non-modular, because it places its face in one, best, international solution whether than evolving local ones. It’s philosophy of experts-know-best has more in common with the theories of the French and the Soviets than with the experience of Americans.

I would stop here, except taking a shot at Ginsburg’s victimology is too easy:

“In some political circles, it is fashionable to criticize and even threaten, federal judges who decide cases without regard to what the `home crowd’ wants,” she said.


0 thoughts on “Justice Ginsburg and the Supreme Court of the World”

  1. Thank you for the link Dan.

    “If we aren't willing to read and consider what our counterparts abroad are writing, … they will be discouraged from listening to us,”

    And really, who gives a flying F—k if that is the case ?

    Should the ” justices” of Gaddafi's Arab Socialist Jamahiriya deign to reference some decision by SCOTUS or a fabled dissent by Judge Learned Hand, what do we gain by that ? Nothing. Libya still doesn't have a judicial branch as we understand the concept. If some stooge of the ruling party in Zimbabwe or Tajikistan has kind words in his kangaroo court for Oliver Wendell Holmes or Felix Frankfurter, it is an act akin to putting a Christmas ornament on a steaming heap of water buffalo excrement. It's not an appropriate use of the ornament and the excrement is no more useful or attractive than before.

    We used to just have judges who wanted to legislate from the bench. Now Ginsburg wants to be Secretary of State too.

  2. I hope the executive branch looks into a potential nominee's views on citing international/other-national law and passes on them if they wish to defer to it or use it as part of their thinking.

    I hope the Senate Judiciary committee screens for this too. Senators should explicitly ask on this issue (get the nominee on the record). If the judge at a later time breaks their oath and cites international/other-national law, remove them from the bench (yeah I know fantasy…only a handful of federal judges have been impeached)

    I wonder what the percentages are for the younger crop of Federal Judges on this issue?

  3. Mark,

    I don't think Ginsburg has much interest in what Africans think, or what African courts decide. She's not a true internationalist, nor even a true Core-ist, nor even a true Old Core-ist — she's a Europeanist.

    I'm sure see sees Europe as the definition of enlightenment. Flattering Europeans' sensibilities so they flatter hers is her objective.

    The same is often true for international law.

    To use Big Cheese's vocab, believes in a Unitary Law, that local, “metropolitan,” merely national laws are seen as local refinements of this one law. And if most of the world doesn't abide by it — well, Europe does, and they are the countries that matter.


    Speaking events halfway across the country are very tiring — why do you think she has to take a nap on the bench?? 😉


    It certainly is worrying. Ultimately, the best way to protect ourselves from judicial tyranny is to limit what they can do. In other words, putting the judiciary back into its pre-Warren, or even pre-Eastern-Establishment, role. To give the states and their peoples their rights back.

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