Everyone is talking about foreign law. No surprise here, because it is the topic of this symposium. But the Justices of the Supreme Court are addressing it in and out of court-Justice Scalia has debated Justice Breyer in a road-show tour and just delivered an endowed lecture on this subject at the American Enterprise Institute; (1) and there is a competing program on the same topic at another law school this weekend.
What's all the fuss about? Just because of citation practice in a handful of recent opinions? Come, now. Next, the Justices will start citing law reviews, which have no legal authority in any jurisdiction. Oh--they do cite law reviews! Never mind. Maybe they'll start citing articles in the New York Times. But since when have these citations caused a string of symposia?
Courts have been citing foreign authority since the nation's founding (2)--though citations are rare, and effect on the outcome rarer still. (3) The portion of opinions that cite foreign decisions has been stable for a long time; any suggestion that the practice has skyrocketed recently is unfounded. (4)
Objections to this practice date from its inception more than two centuries ago; statutes enacted during the founding era in some states forbade such citations because citizens of a new nation wanted to sever ties to the colonial power. (5) Contemporary reliance on foreign law, by contrast, does not suggest that judges are paying obeisance to King George III. The problem is that Justices have taken a kingly role for themselves.
In Atkins v. Virginia, (6) which posed the question whether the Eighth Amendment permits capital punishment of retarded murderers, the majority opinion related that "the world community" (the Court's phrase, not mine) has "overwhelmingly disapproved" of such executions. (7) It did not explain why a poll of United Nations members today has any bearing on the meaning of a constitutional text that James Madison drafted in 1791 or the power of each state to stake out its own position on the subject. The performance was repeated, with nearly identical language (and omissions), in Roper v. Simmons, (8) which concerned capital punishment of youthful murderers. And in Lawrence v. Texas, (9) which dealt with a challenge to the prohibition of consensual homosexual conduct, the Court cited decisions of the European Court of Human Rights and the report of a British parliamentary committee, among other sources. (10)
I am inclined to think that these references are just window dressing. They play no more causal a role than did Kenneth Clark's famous research on dolls, which following its citation in Brown v. Board of Education (11) led to many conferences and articles about the use of social-science research in constitutional adjudication. Most citations are just filler, added by law clerks or by the Justices themselves when engaged in belt-and-suspenders reasoning. They do not imply that the cited sources have any legal effect. Ask yourself this: if some countries prosecute newspapers that publish caricatures of the Prophet Muhammad, or imprison historians who deny that the Holocaust occurred (as Austria has done), what is the chance that any Justice of the Supreme Court will cite these steps as precedent in any case under the First Amendment of our Constitution? There is no chance.
Back to Lawrence. The Justices would have reached the same decision in Lawrence if the Wolfenden Report in the United Kingdom had come to a different conclusion. In Lawrence, the reference to international custom was designed to refute the contention of former Chief Justice Burger that homosexuality has always and everywhere been condemned. (12) It is hard to fault Justice Kennedy for giving an accurate internationalist response to an absurd internationalist ukase offered in support of criminal prohibition. What really swayed the Justices in Lawrence was John Stuart Mill's On Liberty (1859): Government should not interfere with acts that do not harm third parties. …