Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law

RECENT SUPREME COURT opinions mentioning constitutional decisions by courts outside the United States have generated a strong—and grossly overstated—critique by conservative commentators.¹ The thrust of the critique is that these opinions portend inroads on the sovereign ability of the American people to govern ourselves, and the embedding in the U.S. Constitution—through judicial interpretation—of the values of a cosmopolitan elite that could not persuade the American people to adopt those values through purely domestic legal processes.

Only a brief comment on these “arguments” is appropriate here.² First, Supreme Court mention of decisions by courts outside the United States is no recent development, but at most a revival of an earlier tradition that had been submerged for perhaps a decade or two.³ Second, mention is the right word. Only one recent opinion relies on the substance of a decision by a non-U.S. court to support a proposition that played some role in the Court's reasoning.⁴ Other references to such decisions have been in the form of factual observations about what other courts have done. Third, the idea that references to non-U.S. decisions might somehow produce decisions that would not be reached by using other materials for interpreting the Constitution is quite implausible. It seems to require that some justice who would not otherwise be

¹ The most prominent are Robert Bork and Richard Posner. See Robert H. Bork, Coercing
Virtue: The Worldwide Rule of Judges (2003); Richard A. Posner, “Foreword: A Political Court,”
119 Harv. L. Rev. 31, 85–88 (2005). Probably the most extended analysis is Roger P. Alford, “In
Search of a Theory for Constitutional Comparativism,” 52 UCLA L. Rev. 639 (2005).

² For my more extended observations, see Mark Tushnet, “Transnational / Domestic Constitu-
tional Law,” 37 Loyola L.A. L. Rev. 239 (2003); Mark Tushnet, “When Is Knowing Less Better
than Knowing More? Unpacking the Controversy Over Supreme Court Reference to Non-U.S.
Law,” 90 Minn. L. Rev. 1275 (2006); Mark Tushnet, “Referring to Foreign Law in Constitutional
Interpretation: An Episode in the Culture Wars,” 35 Balt. L. Rev. 299 (2006).

³ For a compilation of materials showing how long the tradition is (with some effort to massage
the characterization of the tradition to establish the novelty of recent references to non-U.S.
law), see Steven G. Calabresi & Stephanie Dotson Zimdahl, “The Supreme Court and Foreign
Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision,” 47
Wm. & Mary L. Rev. 743 (2005).

⁴ Lawrence v. Texas, 539 U.S. 558 (2003), referred to a 1981 decision by the European Court
of Human Rights to show the inaccuracy of an assertion made in 1985 by then chief justice
Warren Burger that “condemnation of [homosexual] practices is firmly rooted in Judeo-Christian
moral and ethical standards.” Bowers v. Hardwick, 478 U.S. 186, 196 (Burger, C. J., concurring).

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