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

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 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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David Strom 8:41 PM on January 30, 2023