Foreign Law v. The Bible

Orin Kerr makes a terrific analogy when discussing why the use of foreign law in Supreme Court decisions offends so many conservatives...

The Supreme Court's citations to foreign law have appeared in highly controversial cases at the heart of a national sociopolitical divide between (for lack of better labels) social conservativism and modern liberalism. The kinds of foreign countries that a Supreme Court Justice might know best mostly don't share this sociopolitical divide: in those countries, and especially their court systems, the views of modern liberalism for the most part have won out. In this environment, stressing similarities with foreign court decisions can seem a lot like taking sides in the culture wars.

Of course, the Supreme Court has to rule one way or another in its cases, so in one sense it has to take a side. But citing and discussing foreign law for "confirmation" of a Constitutional holding does more than rule one way or another: it is a reflection of cultural association, an indication that at least some Justices envision themselves as part of a community that happens to be strongly identified with one side of these highly contested debates. Those that object to foreign law are not really concerned that foreign law is somehow binding on the United States, or that it represents a loss of U.S. sovereignty. To the contrary: it is the very fact that such law is obviously not binding under traditional methods of constitutional interpretation that makes the discussions of foreign law most objectionable to its critics. The fact that foreign law isn't binding, but that the Justices have gone out of their way to mention it anyway, fosters the impression that the Justices identify themselves with a side in the culture wars.

If you're unpersuaded, try this experiment. Imagine that instead of citing foreign law in its decisions, the conservative majority on the Court started citing to and discussing the Bible.

Now there's a good way to help liberals blow a few gaskets. As Kerr acknowledges, the analogy isn't perfect. But it's striking that the Court chooses to follow the law of some foreign jurisdictions, but not others. Not that I'm arguing for the Court to start applying sharia law, but it shouldn't be citing to other foreign legal traditions, either. If I wanted to live under German legal traditions, I'd move to Germany... or maybe France.