It was not Muhammad Ali vs. Joe Frazier, but by Washington standards it was a glamorous sparring match: Supreme Court Justices Antonin Scalia and Stephen Breyer jousting at the American University law school late Thursday afternoon over whether American jurists should look to foreign legal precedents when making their decisions.
Scalia, the conservative, was the more vigorous of the two in his making his arguments and made Breyer, generally part of the court’s liberal wing, sound a tad defensive.
But the tone was cocktail-party cordial, sometimes comical, as the two justices sat across from each other in upholstered chairs with moderator Norman Dorsen between them. Although the two justices supposedly represent opposite ideological poles on the court, in fact in the 16 cases decided so far this term, they have disagreed with each other in only four.
For the non-lawyers in the audience, the event, which was broadcast live and then re-broadcast on C-SPAN, served as a preview of what Americans might see in Senate confirmation hearings if Scalia is nominated as chief justice when William Rehnquist steps down.
If this was a kind of off-Broadway tryout, Scalia came across as learned, a bit sarcastic at times, but collegial.
At times, Scalia gave a glimpse of his fast-talking, night-club comedian's persona.
When law school dean Claudio Grossman introduced the justices to the audience as “two towering figures on the United States Supreme Court,” Scalia broadly mugged for the audience, glancing over at Breyer with an exaggerated expression, as if to say, “Hey, not bad, huh?”
And when Professor Michael Rosenfeld asked both Breyer and Scalia an interminable, multi-pronged question that was a near-parody of academic bloviation, Scalia looked out at the audience and asked if anyone could remember Rosenfeld's original question to him.
Although both he and Breyer are Harvard Law School graduates, former law school professors, and members of the most elite lawyers’ club in the nation, Scalia sees himself as the populist in a battle with the elitists: liberal lawyers and judges who find new meanings in the Constitution, for example, discovering a constitutional right to abortion that never existed prior to 1973.
Challenging his American University law school audience, Scalia asked, “Do you think you’re representative of American society? Do you not realize you are a small cream at the top and that your views on innumerable things are not the views of America at large? Doesn’t it seem somewhat arrogant for you to say, ‘I can make up what the moral values of America should be on all sorts of issues, penology, the death penalty, abortion, whatever’?”
Quoting a phrase from a 1958 decision by Chief Justice Earl Warren — “the evolving standards of decency that mark the progress of a maturing society” — and noting that “I detest that phrase,” Scalia said some of his colleagues on the court employ “evolving standards of decency” to justify unilaterally imposing changes in death penalty laws, overriding the will of democratically elected state legislatures.
Scalia has called invoking foreign decisions a “dangerous” practice and he stuck to that position Thursday. But Breyer, Justice Anthony Kennedy and Justice John Paul Stevens have buttressed their decisions in death penalty and gay rights cases with citations of what foreign, especially European, judges have ruled in similar cases.
In the landmark 2003 decision Lawrence vs. Texas, finding a constitutional right to privacy which protects sodomy, Kennedy said the right which the two Texas men claimed “has been accepted as an integral part of human freedom in many other countries.”
He cited the European Convention on Human Rights and a 1981 European Court of Human Rights case.
But Scalia told the audience that “if you told the Framers of the Constitution that what we’re after is something that would be just like Europe, they would have been appalled.”
“Do we just use foreign law selectively? When it agrees with what the judges would like the cases to say, we use the foreign law and when it doesn’t, we don’t use it?” Scalia asked.
Although not mentioning Justice Kennedy by name, Scalia said that Kennedy’s decision in Lawrence vs. Texas arbitrarily used foreign precedents: “not all foreign law, just the foreign law that agreed with the disposition of the case.”
Scalia said he uses foreign precedents only when it comes to interpreting treaties, such as in a case last year, Olympic Airways vs. Husain, which involved the 1929 Warsaw Convention on air travel.
Sticking to the text
For Scalia, the rejection of foreign precedents is part of his larger rejection of any reading of the Constitution that does not stick to the document, as it was written and understood in 1787 (and as amended since).
Scalia said, “When I interpret the American Constitution, I try to understand what it meant, what was understood by the society to mean when it was adopted, and I don’t think it changes since then.”
Foreign law is “irrelevant,” he said, “with one exception: old English law, because phrases like ‘due process’ and ‘the right of confrontation’ and things of that sort were all taken from English law. So the reality is that I use foreign law more than anybody on the court.”
For his part, Breyer minimized the importance of his use of foreign precedents. He said he looked at foreign law simply to learn how judges overseas approach problems comparable to what he must face, a process he called “opening your eyes to things that are going on elsewhere.”
Breyer’s most cogent argument for using foreign precedents was more of a diplomatic than a legal one.
“There are institutions and courts trying to make their way in societies that didn’t use to be democratic,” he explained. “They are trying to protect human rights; they are trying to protect democracy. ... For years, people all over the world have cited the (U.S.) Supreme Court, why don’t we cite them occasionally? They will then go to their legislatures and others and say, ‘See, the Supreme Court of the United States cites us. That might give them a leg up.”
In other words, by citing foreign judges’ rulings, Breyer will help boost their prestige in fledgling democracies.
Breyer confessed he’d made what he called “a tactical error” in a 1999 death penalty case, when citing a judicial decision from Zimbabwe to help prove his contention that too long a delay in administering a death penalty makes the execution cruel and inhuman.
Zimbabwe, he said wryly, is “not the human rights capital of the world.”