A Needed Reminder To The Supreme Court
I haven’t posted anything on the recent SCOTUS decision in Roper v Simmons because, well, Volokh just does it better than I possibly could (go figure). But the issue of the US Supreme Court relying on foreign courts in their decisions bothers me a hell of a lot.
That’s why I was very happy to run across this post over at Literal Barrage on this very issue that I agree with 100%. It is completely inexcusable for foreign courts to exercise influence in our court system, and this branch of the government needs to be clearly reminded of this constitutional fact.
*Of course, Iowahawk provides the clearest commentary of all.
Nanny State | Mr. Bingley | 
March 4, 2005 12:14 pm
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Ah, Tom Feeney: my old boss, you know, back when he was Speaker of the Florida House. His star is still on the rise, and he’s making a lots of waves for a sophomore Congressman. Amusingly, the guy’s actually a bit less radical than he used to be: if I recall correctly, in his first session as a state legislator, he proposed that Florida secede from the Union if…I don’t remember…federal taxes went up? The debt reached a certain point? But you get the idea.
As for courts relying on foreign sources, it’s perfectly valid in some contexts, just not the ones the Supreme Court’s been using them in more and more. In construing the common law, where there is no positive law (statutory or constitutional) on a question, it isn’t unreasonable to examine how other jurisdictions address the issue: no reason to reinvent the wheel.
But Dave if that is allowed, and as a layman I’m not real keen on it, shouldn’t it be restricted to at most England, as that’s what I presume our common law is based upon?
So. What’re we gonna do about it?
So. What’re we gonna do about it?
Other common-law jurisdictions–e.g., England, Australia, New Zealand, Anglophone Canada–are certainly (or should be) more persuasive than the civil-law world, but historically there’s always been a borrowing back and forth of concepts between the two, especially in particular areas. Family law and personal-property (but not real property) probate, for example, was the domain of the ecclesiastical courts before Henry VIII broke with Rome, so it has extensive civilian influences. The law of admiralty is probably where the greatest amount of legal back-and-forth goes on, and maritime law in the US is federal common law, with a few statutes controlling it but a deliberate policy in place by Congress to allow the courts to develop the details over time on an evolutionary basis.
For a court to look to other countries in areas like this is no more unusual or inappropriate than exmaining the laws of sister states. It has persausive rather than controlling value, the courts can pick and choose, and the legislature can always step in if it doesn’t like the judicial choice. The problem with using it in a constitutional context is that it does essentially make foreign law binding on the US, and without any legislative means of superseding it (aside from constitutional amendment and, I suppose, judicial impeachment).
The problem with using it in a constitutional context is that it does essentially make foreign law binding on the US, and without any legislative means of superseding it (aside from constitutional amendment and, I suppose, judicial impeachment).
Perfectly stated.
But I assume that this is way below the bar (hehe) for impeachement, no? Tho I would love to see it happen.
Crusader, one of my supervisors at the Florida House once suggested only half-jokingly that we should impeach a judge every year no matter what, simply to demonstrate that we could and thereby put some fear into the judiciary, like the old saying about the Royal Navy hanging admirals “as an example to the others.” That’s at the state level, of course, and in reality you’re right that the bar for impeachment has been set almost impossibly high. I believe the US Senate has only actually tried and removed three impeached federal judges from the bench in the past 100 years. New Hampshire did remove a majority of their supreme court’s justices a few years back, though: I don’t remember the details.
Who can declare the SCOTUS unconstitutional?
correction: an action of the SCOTUS?
In practice, no one, except for a later incarnation of the Court itself by overruling earlier case law. In theory, Congress impeaching a majority of the Justices for judicial overreach might serve to overrule an unconstitutional decision, but then again the lower courts might still keep on following it. Which means that the only way to declare an act of the court unconstitutional in some sense would be to amend the federal constitution, which, of course, on anything but the most uncontroversial things is pretty much impossible.
Oh, and my single favorite line from the Iowahawk parody:
“In a scathing and sometimes caustic dissent, Judge Antonin Scalia wrote that ‘Holy. Freakin’. Shit.'”
“one of my supervisors at the Florida House once suggested only half-jokingly that we should impeach a judge every year no matter what”
I’m kind of partial to the Lenny Bruce version in which the warden says of the uprising inmates “Let’s shoot about 600 of them as a warning”.