By Kersch, Ken I.
The Public Interest , No. 154
THE rulings of the Supreme Court in last spring's landmark affirmative-action and gay-rights cases were less surprising than the reasoning used by some of the Court's justices. In resolving constitutional questions, the Court routinely relies on arguments appealing to the constitutional text and government structure, to precedent and prudence. In Grutter v. Bollinger, however, which upheld the use of racial preferences in law school admissions, and in Lawrence v. Texas, which struck down Texas's prohibition on same-sex sodomy, the Court drew an additional arrow from its quiver. Several justices chose to assess the constitutionality of purely domestic civil-rights and civil-liberties policies against the yardstick of foreign practices, foreign court decisions, and broadly worded, incantatory international human-rights agreements. In Grutter, Justice Ruth Bader Ginsburg (joined by Justice Stephen Breyer) cited both the International Convention on the Elimination of All Forms of Racial Discrimination (which the United States has ratified) and the Convention on the Elimination of All Forms of Discrimination Against Women (which it has not) as evidence of an "international understanding of the office of affirmative action." In Justice Ginsburg's view, these international conventions provide the grounds for "temporary special measures aimed at accelerating de facto equality." In Lawrence, Justice Anthony Kennedy prominently recurred to a friend-of-the-Court brief on foreign law and court decisions filed by Mary Robinson, the former U.N. High Commissioner for Human Rights, and to a key decision of the European Court of Human Rights.
These passing references to international agreements and foreign law are easily overlooked, and the Court's appeal to international standards received scant critical attention. The Court's multilateral turn, however, is no accident. Behind these seemingly benign references to international agreements and foreign practice stands a vast and ongoing intellectual project, one which the justices themselves occasionally acknowledge. Justice Breyer, the Court's most intellectually aucourant justice, boldly declared last spring on ABC's "This Week" that "whether [and how] our Constitution ... fits into the governing documents of other nations" is a "challenge for the next generations." In a speech before the American Society of International Law, Justice Breyer issued a public call to lawyers and law professors to provide the Court with "relevant comparative material" that would otherwise prove difficult for its justices and clerks to find. In an earlier speech before the same audience, Justice Ginsburg announced that "comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights," and that "conclusions reached by other countries and by the international community should at times constitute persuasive authority."
Many of the justices actively seek out counsel from other countries on some of America's most controversial policy issues. Justices Breyer, Ginsburg, and Sandra Day O'Connor have met with French President Jacques Chirac to discuss French perspectives on the death penalty and civil liberties--and they did so shortly after France, as a member of the Council of Europe, had announced that abolishing capital punishment in the United States was one of its priorities. (A similar meeting between President Bush and Justices Clarence Thomas and Antonin Scalia would, to say the least, be considered highly irregular). The Court has similarly met with the justices of India's Supreme Court to discuss affirmative action--a meeting that, according to the New Republic's Jeffrey Rosen, apparently played a significant part in shaping Justice O'Connor's tie-breaking affirmative-action opinion.
The Court has in the past made appeals to international agreements and foreign law and practices in some of its death-penalty, federalism, and "right to die" cases, among others. …