Friday, January 14, 2005
Scalia v. Breyer: I watched the webcast version of the discussion between Supreme Court justices Antonin Scalia and Stephen Breyer on the role of international law as it relates to the American judiciary. I was repeatedly shocked by Breyer's comments. [You can watch the entire event here. It's about 90 minutes long. RealPlayer required.]
Hindrocket over at Powerline pointed out the first jaw-dropping thing I saw Breyer say via an Associated Press report.
Breyer responded that international opinion can be relevant in determining fundamental freedoms in a more global society.
"U.S. law is not handed down from on high even at the U.S. Supreme Court," he said. "The law emerges from a conversation with judges, lawyers, professors and law students. ... It's what I call opening your eyes as to what's going on elsewhere."
And here I thought that laws were made by the citizens -- either through an initiative process or by their elected representatives. I thought I had passed my high school civics class. *mutter: public schools*
The entire video is well worth watching, mainly for Scalia's evisceration of Breyer. After Breyer makes the aforementioned statement, Scalia continually uses it as a cudgel -- making the point that "judges, lawyers, professors and law students" are not representative of the American people as a whole.
On the real subject of the discussion, the use of foreign laws in American jurisprudence, Scalia charges that the use of foreign case law is really just a cover for a judge's own determination of right and wrong. Breyer unconvincingly denies the charge, but his arguments for the use of foreign case law seem to unwittingly back that up.
Hindrocket puts it succinctly:
The diabolical nature of the "internationalist" school of Constitutional interpretation lies, in part, in the fact that there is no standard by which Supreme Court justices choose that facet of world opinion that is "enlightened," except their own prejudices. You can be sure that only such "world opinions" as are liberal would find their way into the Constitutional jurisprudence of Democrat-appointed justices.
While the Supreme Court cited the European Court of Human Rights in its Lawrence decision striking down homosexual sodomy laws, the justices could just as easily have cited Saudi law in upholding them. Scalia -- and I -- would argue that both citations are wrong.
If there's one thing I really took away from the discussion it is that Scalia really does seem to believe in the democratic process and is unwilling to impose his own personal views on the American public. On the other hand, Breyer's aforementioned quote reveals an elitism and arrogance that judges should use their power to accomplish what they believe is right. Though by the end of the discussion Breyer attempts to distance himself from his earlier misstep by talking about democracy and the legislative process, it rings hollow.
Give me more Scalias any day.