The Sotomayor Hearings: Supreme Court Citations to International and Foreign Law

As the Senate hearings addressing the nomination of Judge Sonia Sotomayor to the United States Supreme Court proceed through the thickets of legal concerns, one issue that appears to be rather arcane to the average American may be among the most significant. Indeed, it reflects a philosophical dispute that underlies many of the questions at the hearings. Does Judge Sotomayor believe the Supreme Court should be able to cite international and foreign law in its decisions? Let’s be frank: considering some of the esoteric sources cited in many Supreme Court opinions, why would anyone spend more than a moment on what sources the Court will refer to? Yet, this issue has become a focus of significant debate.

Although many members of the Court have cited to international and foreign law at one time or another (including Justices William Rhenquist, Antonin Scalia, Sandra Day O’Connor), none have asserted that international and foreign law have any determinative or precedential value in the U.S. legal system. Moreover, citation to international and foreign law in common law cases has rarely been challenged. Rather, the issue is centered on the reference to international and foreign law when the Court is addressing the Constitution. In fact, this issue has served as a cloak for the ongoing debate between the “originalists” (those who assert that the original wording of the Constitution and its context at the time are the sole measure as to the meaning of the Constitution) and the “evolutionists” (those who assert that we must measure the meaning of the Constitution with at least an eye on its contemporary context) over the appropriate way to interpret the Constitution. In effect, the “originalist” argument states that to allow reference to foreign and international law is not merely to align oneself with foreign interpretations that could be inconsistent with the context of American constitutional law (because the sources and therefore the meaning arises in different contexts), but that the use of these foreign sources undermines the very meaning of the Constitution’s drafters and by implication American sovereignty itself. Therein lies the bedrock debate: although international and foreign law is neither mandatory nor precedential, the fear is that these references will be used as tools to pervert the essence of the “originalist” philosophy of constitutional purity. 

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Confrontation and Criminal Trials: What’s Actually in Play

The long-awaited Supreme Court decision in Melendez-Diaz v. Massachusetts finally came down on June 25, 2009.  See my prior post here.  Neither the majority opinion nor the dissent yield many clues about what took so long (this was the last case from the Court’s November sitting), and on the surface at least there is little that is portentous.  Yet the case is ultimately about far more than hearsay evidence in criminal trials.  It reveals significant discord about the nature of the modern adversary trial as well as skepticism over the use of science in the courtroom. 

The case addressed whether the government may introduce a crime laboratory report (hearsay) against a defendant without calling as a witness the analyst who performed the test.  The Court held that such reports are manufactured expressly for use at trial against the defendant; hence, they constitute “testimonial hearsay” that cannot be introduced without the declarant (the lab analyst) on the witness stand, available for cross-examination.

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More on Caperton

grisham1In a comment following Ed Fallone’s post on Chief Justice Robert’s little list (actually it as a rather long list), he argues that there is little in the text, structure and history of the  Bill of Rights that might inform the question of when the due process clause requires a judge to recuse herself because of the potential for bias associated with campaign contributions:

It may very well be that something like “judicial bias” is undefinable without reference to some background principles derived from the constitutional design. Unfortunately, I believe that the direct election of judges was a reform associated with Jacksonian theories of democracy, and therefore the relevant state laws post-date the Bill of Rights. Without any relevant evidence of original intent on the question of when a judge is tainted by campaign contributions, I am willing to rely on Mike McChrystal’s common sense approach: the perception of bias in this case was too obvious for the Court to ignore.

He’s right about state judicial elections. If I recall correctly, they began with Mississippi in 1832. I agree that Mike McChrystal does capture something important about why the majority acted in the way it did, but I think that it might be not simply a judicial gag reflex. I think there may be some instruction to be found in the structure of the constitution. I’m still thinking on it, but it might go something like this.

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