Foreign law and Sotomayor

Warmest congratulations to the new Supreme Court justice. An inspiring, remarkable, and distinctively American story, and undoubtedly a well-deserved appointment. Soon we'll find out what kind of a justice she'll be--and what her promises (made in their time by all the other ideologically committed justices of left and right) about strict political neutrality, and applying the law rather than making it, blah, blah, blah, will mean in practice.

As always Stuart Taylor of National Journal has something interesting and important to say on the subject. I was among the many who noted (with approval) Sotomayor's statement that "American law does not permit the use of foreign law or international law to interpret the constitution". Stuart's new column points out that there may be much less to this than meets the eye.

It's clear from Sotomayor's post-testimony written answers, as well as from her April 2009 speech to the ACLU of Puerto Rico, that she would consider foreign court decisions -- precedents, that is -- "as a source of ideas... informing our understanding of our own constitutional rights."

At the outset of her ACLU speech, Sotomayor said: "I always find it strange when people ask me, 'How do American courts use foreign and international law in making their decisions.' And I pause and say, 'We don't use foreign or international law; we consider the ideas that are suggested by international, foreign law."

She added that "to the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system" and endorsed the idea of Justice Ruth Bader Ginsburg "that, unless American courts are more open to discussing the ideas raised by foreign cases, by international cases, that we are going to lose influence in the world."

This could be an extremely important issue, and it looks as though Sotomayor will be on the wrong side of it. The Ginsburg view that she endorses seems indefensible, if not downright bizarre, to me. The US increases its influence in the world by making its law conform more closely to foreign laws? Eh? (This reminds me of the idea that Britain would have more influence in the world once it submerged itself more thoroughly in Europe.) More important, what concern is it of the Supreme Court whether and to what extent the US influences other countries in the first place?