SCOTUS Justice Breyer likes to rely on the laws of other countries

posted at 6:01 pm on September 15, 2015 by Jazz Shaw

This isn’t too disturbing. Nope. Not at all. Everything is just fine here, folks.

Supreme Court Justice Stephen Breyer has a new book out in which he shares some of his many philosophical observations about law and the court. In it, as the latest issue of Time reveals, he concludes that there’s clearly nothing wrong with American courts – including SCOTUS – considering the laws and judicial rulings of other nations. Stop laughing and pointing. I’m serious.

Should the Supreme Court care that other countries have abolished the death penalty?

That looming question animates Justice Stephen Breyer’s “The Court and the World,” a brisk but academic book that argues that it is relevant for the nation’s top judges to consider what other countries’ legal systems have decided when faced with difficult issues.

“If someone with a job roughly like my own, facing a legal problem roughly like the one confronting me, interpreting a document that resembles the one I look to, has written a legal opinion about a similar matter, why not read what that judge has said?” writes Breyer, who was appointed by President Clinton in 1994. “I might learn from it, whether or not I end up agreeing with it.”

Why not read what the other judge has said? Well, for one thing, the other judge isn’t working off of the United States Constitution. I can see how judges in some other countries might have “a job like yours” and I’m sure some of them wrestle with the same type of problems on occasion. But how many of them actually have a constitution that’s substantially the same as ours? And even if you found one that was really, really close, it still wouldn’t be close enough. You swore to uphold our constitution, not some reasonable facsimile thereof.

Even if the issue before them was precisely the same, you serve the people of the United States of America. Each country has their own sensibilities and tendencies just as we have ours. These are our courts and I’m not sure how that could be in any way unclear. We’re not talking about referencing ancient documents which the founders admittedly looked to when drafting our own bedrock documents here. You’re pinging off a topic which is up for debate here and now in the modern world. Whether France, Germany or Russia have done away with the death penalty has nothing to do with what the citizens of our nation decide to do.

Of course, this isn’t something new. I enjoyed the reference to a bit of congressional history in the article which reminds us that back in 2004 there were a number of members of Congress talking about the possibility of impeaching justices who do this, and Breyer was on the list even then. (NBC News)

While Feeney and Goodlatte, who are members of the House Judiciary Committee, can’t summon the justices before them to defend their use of foreign precedents, they hope to fire a rhetorical shot across the bow of jurists who increasingly look to foreign legal trends, especially in death penalty and gay rights cases.

Feeney even used the “I” word, impeachment, in an interview with MSNBC.com in his House office Wednesday.

“This resolution advises the courts that it is improper for them to substitute foreign law for American law or the American Constitution,” Feeney said. “To the extent they deliberately ignore Congress’ admonishment, they are no longer engaging in ‘good behavior’ in the meaning of the Constitution and they may subject themselves to the ultimate remedy, which would be impeachment.”

And who were the justices who were under discussion for citing foreign law in their rulings back then? John Paul Stevens, Stephen Breyer, and Anthony Kennedy. The problem is that there doesn’t seem to be any remedy for such a problem (when taken to the extreme) except for impeachment. The court is a co-equal branch. Congress can’t drag them in to chastise them or pass laws telling them how to rule. It’s either leave them to their devices or impeach them, really. Sure, you can pass a resolution of disapproval or some such measure, but it carries no weight.

I don’t know how much time Breyer has left to him, but he might want to consider early retirement.


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Comments

The SOB should be impeached. I think it is an impeachable offense.

they lie on September 15, 2015 at 6:04 PM

Bush family built this one.

APACHEWHOKNOWS on September 15, 2015 at 6:04 PM

Not just impeached but executed for treason.

Flange on September 15, 2015 at 6:05 PM

This isn’t too disturbing. Nope. Not at all. Everything is just fine here, folks.

Jazz, no kidding. So judges can just pull crap from the air. This will be chaos. How can they be so smart, but yet so dumb.

Oil Can on September 15, 2015 at 6:05 PM

As a nation, we are going down the drain at an ever increasing rate.

rbj on September 15, 2015 at 6:06 PM

Impeach under Trump presidency.

tim c on September 15, 2015 at 6:09 PM

The GOPe, if it did not agree with the commie lite ideology would be impeaching these SOB’s who think they have the power to make laws. So, maybe the dems. would not vote to impeach, but we could get all kinds of support to elect a super majority by doing the process. Invoke the friggin nuclear option.

they lie on September 15, 2015 at 6:10 PM

Now say Ted Cruz!

tim c on September 15, 2015 at 6:10 PM

Well, shoot…why have any government at all? We can just pick and choose which set of laws we want to follow whenever we want…right Mr. Justice?

Breyer swore an oath to uphold and protect the Constitution of the United States…and not that of any other nation. If he cannot fathom the difference, get his butt out of there before more good people get hurt.

Perhaps it is time for the good justice to retire and go work for his ice cream-making cousins, or his relatives who make toy horses? Might do a lot less harm.

coldwarrior on September 15, 2015 at 6:10 PM

he might want to consider early retirement.

Jazz, don’t you know about the secret Supreme Court initiation rites? Under pain of death, they all forswear early retirement.

Marcola on September 15, 2015 at 6:11 PM

i dont give crap what this fop reads when he comes up with his conjuring. he’s a liberal a$$wipe. if he wants to read some limp wristed lefty freak from finland to come up with his penumbras, i dont care and i am not surprised. he has been dead to me for a long time. i would be astounded if he used proper judicial temperament, grounded in our constitution and precedent, and employing reason. a dog eats its own crap. this freak does uses foreign law to make his “decisions”. ok.

t8stlikchkn on September 15, 2015 at 6:13 PM

Convention of the States anyone? Maybe time to remove that lifetime job.

makingravy on September 15, 2015 at 6:15 PM

This should be enough to impeach him. That is not the oath he took. It was to up hold the Constitution of the United States not, to up hold the Constitution of the United States “and some other countries”

pwb on September 15, 2015 at 6:16 PM

Breyer—-member in good standing of the MONEY POWER CONTROL Cult in DC and NYC.

Traitorous.

PappyD61 on September 15, 2015 at 6:17 PM

Jefferson’s fears realized…. A despotic court. IMPEACH!!!!!!

HomeoftheBrave on September 15, 2015 at 6:19 PM

jurists who increasingly look to foreign legal trends, especially in death penalty and gay rights cases.

…he must not study the middle-eastern jurists much!

JugEarsButtHurt on September 15, 2015 at 6:20 PM

He and Jeb can move to Mexico.

Schadenfreude on September 15, 2015 at 6:21 PM

In it, as the latest issue of Time reveals, he concludes that there’s clearly nothing wrong with American courts – including SCOTUS – considering the laws and judicial rulings of other nations…

“If someone with a job roughly like my own, facing a legal problem roughly like the one confronting me, interpreting a document that resembles the one I look to, has written a legal opinion about a similar matter, why not read what that judge has said?” writes Breyer, who was appointed by President Clinton in 1994. “I might learn from it, whether or not I end up AGREEING with it.”

Or, you might consider the Constitution, Federal law, state law, and stare decisis.

International law and treaties do NOT trump the US Constitution, including those ratified by the Senate. See: Reid v Covert, 354 U.S. 1 (1957).

Bishbop on September 15, 2015 at 6:23 PM

Good Lord, he remembers taking the oath, right?

Cindy Munford on September 15, 2015 at 6:24 PM

No surprise here. To a certain extent, Kennedy and crew relied on international law in Atkins (execution of mentally retarded violations Eighth Amendment) and Roper (execution of capital offenders who were juveniles at the time of of offense violates Eighth Amendment). They developed this line of cases based on “evolving standards of decency” (their term) to address Eighth Amendment claims, and they sometimes turn to what’s happening internationally to support their decisions. But they primarily rely on what the state legislatures are doing. At any rate, we’ve known this. In fact, I don’t think this is even the first time Breyer has acknowledged his reliance on international law.

dorkintheroad on September 15, 2015 at 6:28 PM

Grounds for impeachment.
But we can wait for a Trump presidency. Don’t want barry getting another shot at the court

Iblis on September 15, 2015 at 6:28 PM

All the liberals, including Kennedy, cherry-pick foreign law to support their views, and ignore the countries’ laws that don’t.

In Knight v. Florida, Breyer found “useful” court decisions on delays of executions from India, Jamaica and Zimbabwe.

Zimbabwe????

Wethal on September 15, 2015 at 6:31 PM

You swore to uphold our constitution, not some reasonable facsimile thereof.

This is much ado about nothing.

He’s not saying he will treat foreign authorities as binding or even defer to them in any way. He’s just saying he will read and consider them. Courts routinely consider non-binding authorities to help aid their decision-making, such as academic treatises, law review articles, or interpretations of similar statutory provisions.

There is no reason (other than bare xenophobia) to consider other non-binding authorities while categorically ignoring ones that come from foreign countries.

righty45 on September 15, 2015 at 6:36 PM

The Constitutional Oath of Office taken by all federal officials, except the President…

“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Federal judges, including SCOTUS jurists, also take the Judicial Oath – here is it as it was modified in 1990…

“I, _________, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States. So help me God.”

Breyer is in contemptuous violation of both of his oaths. Of course, in DC today, even on the SCOTUS (Sottomayer, Ginsburg, Kagan, and Kennedy in particular), it’s standard operating procedure to break / dishonor one’s oath of office. It’s not just the left either – look at so many members of the GOP in Congress…

The ends justifies the means seems to be far more of a belief system than the US Constitution….but that fits with the demise of this Republic.

Athos on September 15, 2015 at 6:37 PM

See the problem isn’t our system, it’s us. One way or another our idiotic elites must be purged.

DFCtomm on September 15, 2015 at 6:40 PM

If we’re not going the prosecute and execute these open and overt traitors, can’t we exile them to other countries — like send him and Ginsberg to South Africa with its superior Constitution?

ShainS on September 15, 2015 at 6:46 PM

BTW, impeachment isn’t going to happen, even if you think it should. Because:

The only Justice to be impeached was Associate Justice Samuel Chase in 1805. The House of Representatives passed Articles of Impeachment against him; however, he was acquitted by the Senate.

Breyer would have to commit murder, kill a bunch of puppies, refuse to issue gay couples marriage licenses, i.e. do something dastardly, for impeachment to be ever be seriously considered.

dorkintheroad on September 15, 2015 at 6:48 PM

When 9 appointed judges can pick and choose what America means at any given time – and base their decisions on personal feelings or some other countries law as precedent for the American system – then we have lost our country and everything the founding fathers and good men after them worked for has failed.

There needs to be an impeachment process for situations like this.

celt on September 15, 2015 at 6:49 PM

All the liberals, including Kennedy, cherry-pick foreign law to support their views, and ignore the countries’ laws that don’t.
In Knight v. Florida, Breyer found “useful” court decisions on delays of executions from India, Jamaica and Zimbabwe.
Zimbabwe????
Wethal on September 15, 2015 at 6:31 PM

Zimbabwe under the ” can’t afford a machete at that time ” clause

Mr Soames on September 15, 2015 at 6:53 PM

This is nothing that a little piano wire can’t resolve.

bbinfl on September 15, 2015 at 6:54 PM

Good Lord, he remembers taking the oath, right?

Cindy Munford on September 15, 2015 at 6:24 PM

Apparently not Cindy. It seems memory loss is trendy these days.

JusDreamin on September 15, 2015 at 6:56 PM

Cheerleader for Obama’s “New World Disorder”.

fogw on September 15, 2015 at 7:01 PM

Judges should not make laws or use other countries law to settle cases. We are The USA…once the the land of the home and the brave until liberals ruined it.

jaywemm on September 15, 2015 at 7:04 PM

The galling thing is that he’ll only consider foreign law and court cases that support the conclusion he has already reached.

Likewise, he’ll totally ignore foreign law and court cases that disagree with his predetermined solution.

What a phony.

Elmer Stoup on September 15, 2015 at 7:06 PM

There is no reason (other than bare xenophobia) to consider other non-binding authorities while categorically ignoring ones that come from foreign countries.

righty45 on September 15, 2015 at 6:36 PM

And by “categorically ignoring” you mean using it to formulate the legal basis of your opinion because you can just plausibly deny it as independent jurisprudence and call anyone who questions your motivations a xenophobe, “righty”.

crrr6 on September 15, 2015 at 7:07 PM

If we had Congressional leaders who cared about the Constitution, Breyer would be impeached, along with the usual suspect justices.

As would Obama.

INC on September 15, 2015 at 7:21 PM

Why not read what the other judge has said? Well, for one thing, the other judge isn’t working off of the United States Constitution.

Plenty of countries have similar constitutions. What Breyer said makes perfect sense. If you;re designing a program you’re an idiot if you don’t look at what others who have worked on similar programs have done. Maybe they used a different language or were addressing a somewhat different problem but that doesn’t mean there’s nothing to learn there. Same thing here. No, not 100% of everything you look at from another legal system will translate over well, but that doesn’t mean there’s any harm in looking.

Tlaloc on September 15, 2015 at 7:28 PM

Not just impeached but executed for treason.

Flange on September 15, 2015 at 6:05 PM

Good thing the voice of reason spoke up, I was afraid we’d get one thread without explicit death threats against government officials.

Whew!

Tlaloc on September 15, 2015 at 7:30 PM

Good grief, this is ridiculous! Our entire legal system is based on that of England and our courts looked to English precedent for guidance for a hundred years in torts, contracts, property, you name it. Every lawyer in the U.S. has studied English case law in law school.

cam2 on September 15, 2015 at 7:33 PM

Or, you might consider the Constitution, Federal law, state law, and stare decisis.

International law and treaties do NOT trump the US Constitution, including those ratified by the Senate. See: Reid v Covert, 354 U.S. 1 (1957).

Bishbop on September 15, 2015 at 6:23 PM

If only you were actually arguing against something he said…

Tlaloc on September 15, 2015 at 7:33 PM

I saw this asswipe do an interview the other night, pushing his new tome. He had the balls to verify what we all already knew; that he views the Constitution as a “living, breathing” document, not that which was meant by the originators. Interpretation: It means what we unelected political/judicial hacks say it does. Oh, and by the way, I (‘Briar’) want your waterfront property for my new financial enterprise. Too bad for you, sucka.

vnvet on September 15, 2015 at 7:34 PM

Agree with Tlaloc, we should not be executing the mentally ill.

virgo on September 15, 2015 at 7:35 PM

He had the balls to verify what we all already knew; that he views the Constitution as a “living, breathing” document, not that which was meant by the originators.

vnvet on September 15, 2015 at 7:34 PM

So you found out he’s not an idiot. Cool.

Tlaloc on September 15, 2015 at 7:36 PM

I see no reason why we cant amend the constitution to state that Courts must only rely on laws of the land. The legislature enacts laws and the SCt reviews them. It seems that the Ct is trying to side step that thing called democracy.

Blake on September 15, 2015 at 7:37 PM

The problem is that there doesn’t seem to be any remedy for such a problem (when taken to the extreme) except for impeachment. The court is a co-equal branch. Congress can’t drag them in to chastise them or pass laws telling them how to rule. It’s either leave them to their devices or impeach them, really.

How about a Constitutional amendment spelling out exactly what role SCOTUS and the lower federal courts are allowed to rule on?

Bitter Clinger on September 15, 2015 at 7:39 PM

So you found out he’s not an idiot. Cool.

Tlaloc on September 15, 2015 at 7:36 PM

No, vnvet isn’t.

But you and Breyer clearly are.

Bitter Clinger on September 15, 2015 at 7:40 PM

Good thing the voice of reason spoke up, I was afraid we’d get one thread without explicit death threats against government officials.

Whew!

Tlaloc on September 15, 2015 at 7:30 PM

Says the one who loves dead babies.

Irony.

Bitter Clinger on September 15, 2015 at 7:42 PM

I can imagine Breyer meeting the likes of past justices such as John Marshall, Oliver Holmes, Joseph Story or Taft in the afterlife.

Breyer will be seated at the Children’s Table.

Missilengr on September 15, 2015 at 8:02 PM

This is just a way of cherry picking and rationalizing policies a justice likes. They won’t look to Singapore, Russia, Botswana, or Peru for legal guidance; justices will just look around for other countries that are doing exactly what they’d like to see done here, and say: see we should do it too!

HakerA on September 15, 2015 at 8:02 PM

So you found out he’s not an idiot. Cool.

Tlaloc on September 15, 2015 at 7:36 PM

He’s far from an idiot – maybe. He is an evil, leftist, revisionist political hack bent on destroying this country; just like you who, thankfully, has zero mental or political power.

vnvet on September 15, 2015 at 8:06 PM

The Russians know how to “taint” food supplies. Apparently a lost art, otherwise.

Carnac on September 15, 2015 at 8:12 PM

Says the one who loves dead babies.

Irony.

Bitter Clinger on September 15, 2015 at 7:42 PM

The live ones smell worse.

Tlaloc on September 15, 2015 at 8:13 PM

BTW this using laws from other nations (“World View”) was supported by several other justices in one time frame or another … O’Connor and Ginsburg come to mind.

Heck, Roberts can find justification for ANY law by looking under a carpet for gawds sake.

Missilengr on September 15, 2015 at 8:13 PM

pox upon him and his house

0331 on September 15, 2015 at 8:14 PM

Whatever you do don’t show David Souter that piece of property you ‘think’ you own.

Missilengr on September 15, 2015 at 8:15 PM

So that’s the problem!!

Justice Breyer doesn’t speak good English and doesn’t know the difference between State and states.

That explains his ObamaCare vote!

KenInIL on September 15, 2015 at 8:16 PM

In some countries, you’re GUILTY until proven innocent. In some countries there is no such thing as a 4th Amendment.

Wonder if Breyer would be happy using those countries “laws” as a basis for making a ruling.

GarandFan on September 15, 2015 at 8:30 PM

It’s One-World . . . . . right, Justice Breyer?

listens2glenn on September 15, 2015 at 8:36 PM

And by that, Breyer means he CAN’T WAIT to impose Shari’ah on you pitiful simpletons.

After all he’s like a black-robed God, a ‘llah himself, is he not?

And he knows best what all the unwashed plebes truly need.

And Mitch McTurtle knows that it’s not the hill to die on.

HikaruKitsune on September 15, 2015 at 9:19 PM

How absolutely arrogant to admit he even CONSIDERS laws of other countries.

FDR tried to stack the court at one time, and the constitution doesn’t prescribe how many justices are on the court, so maybe President Trump can add a few dozen conservative CONSTITUTIONALISTS to balance the traitors that vomited out Kelo, etc.

Kelo was worthy of a banana republic dictator. The state confiscated citizens’ private property (their homes, no less), destroyed the structures to make way for an industrial campus/mall/etc. in order to satisfy commercial greed of other private persons and entities (Pfizer]. To rub salt in the would, Pfizer never used the land, the area remains void, and families were displaced for NOTHING.
Zimbabwe, anyone??

fred5678 on September 15, 2015 at 10:19 PM

In his 1999 reference to decisions from Zimbabwe and other countries, Breyer previewed some of O’Connor’s argument that citing foreign precedent may help cultivate goodwill with other nations.

I did not find “cultivating good will” in the constitution or oaths describing his duties on the court. He is inventing his job description out of thin air.

Term limits may be required to offset Alzheimer’s or other mental disease in old farts on the bench.

fred5678 on September 15, 2015 at 10:35 PM

Not so early retirement that Obama can replace him. Disgusting – we have the best Constitution in the world and these yokels look to foreign goats?

Man, bad, very bad.

MN J on September 15, 2015 at 10:44 PM

SCOTUS Justice Breyer likes to rely on the laws of other countries

Shtik drek

Dr. ZhivBlago on September 15, 2015 at 10:54 PM

I suppose it is a good thing that we live in a country in which this jerk is not taken out and shot.

GaltBlvnAtty on September 15, 2015 at 11:20 PM

Tlaloc on September 15, 2015 at 7:28 PM

How could the judicial system of the UK inform SCOTUS in a First Amendment case? Say, Freedom of the Press?

Or the Austrailian system in a 2nd Amendment case….you know…the Right to keep and bear arms?

“Look…..private ownership and possession of firearms is illegal down under…that means it should be illegal here too!”

BobMbx on September 15, 2015 at 11:34 PM

Wrong thread…

Dr. ZhivBlago on September 15, 2015 at 11:40 PM

Yawn, this is nothing new. 10 years ago, Scalia and Breyer had an intelligent and lively debate on the subject:

I don’t know if there’s anything inherently wrong with Breyer reading opinions from foreign courts. Even Scalia, diehard textualist that he is, has probably used a non-binding source as a reference at some point in his career. The main issue with Breyer specifically is his penchant for inserting foreign briefs into his opinions. He catches a lot of flak for this and rightfully so. That being said, I can’t think of a case that hinged entirely on foreign opinions (Lawrence v Texas is the closest thing and even then, the holding wasn’t based purely on the Court’s review of laws in the EU).

Rehnquist and O’Connor are two others that have suggested that international law will inevitably play a larger role on SCOTUS now that we live in an increasingly globalized world. And in very limited cases, like cybersecurity cases, actions by our government against state-less sponsors of terrorism, or signing on to treaties, there is some truth to that. Scalia has even expressed a willingness to do so when absolutely necessary. But this is an increasingly slippery slope.

Breyer’s admission is a reminder that nominating originalist judges, like those in the mold of Alito, is absolutely crucial to the conservative cause. That being said, Breyer’s admission isn’t grounds for impeachment.

Hostile Gospel on September 15, 2015 at 11:59 PM

He’s not alone. Buzzi-Ginsburg has said the same thing. Sadly, these a$$wholes swore to uphold the Constitution of the UNITED STATES of AMERICA, not Sharia law of Malaysia and the batsh1t crazy gang of mullahs in Iran or what the Hell ever is the law-of-the-land in the magic kingdom of NORK. So, SURPRISESURPRISE!!! Liberals lied again…

oldleprechaun on September 16, 2015 at 8:59 AM

Too bad they have forgotten to consider the laws of the 50 states and how to apply the 10th Amendment of the Constitution they (allegedly) swore to uphold.

The law in this country has become nothing more than an emotionally-charged appeal based (more or less) on facts. We are no longer governed by law (or men and women who enforce the law from the bench), but rather by judicial whimsy and caprice.

EdmundBurke247 on September 16, 2015 at 1:16 PM

Good thing the voice of reason spoke up, I was afraid we’d get one thread without explicit death threats against government officials.

Whew!

Tlaloc on September 15, 2015 at 7:30 PM

The very concept of treason, implies some form of due process, so for you to say that there are “explicit death threats” is asinine.

EdmundBurke247 on September 16, 2015 at 1:22 PM