By Conor Clarke
And if she does, will anyone care? I hope not. There is a reasonable and occasionally interesting debate about whether foreign materials should have a role in American jurisprudence -- that is, a debate about whether domestic judges should cite foreign and international legal materials when they make decisions. But I do not think the size of this debate is proportionate to the what the Court has actually done. When critics get worked up about international norms muddying our legal waters, they have, at most, six decisions in mind.
But Sotomayor has approved of making use of foreign materials. In an ACLU speech last April, she said that "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 so this Wall Street Journal op-ed by Collin Levy goes through the motions of anger and confusion: Citing foreign law is inherently subjective! (If we start citing the European Union, why can't some future justice cite Sudan?) Citing foreign law is anti-democratic! (How can a French law be accountable to the American people?) And citing foreign law damages American sovereignty! (Doesn't the very concept of nationhood depend on the clear separation of legal systems?)