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?)
And isn't it? Well, maybe. But here are three reasons why citing foreign and international law shouldn't be so controversial.
1. What criticism of foreign law wouldn't extend to plenty of materials that the Court also cites, without controversy? My favorite example here is law review articles: Their authors aren't democratically accountable, either. But if you search any database of federal decisions you will find dozens of citations to other things: Karl Marx, Sigmund Freud, John Updike and Bob Dylan, just to name a few.
2. Citing foreign and international law has been happening for just about all of American history. I think that fact pretty much dissolves the sovereignty complaint. Go back to the 19th Century and you'll find plenty of cases (often involving fun things like pirates and treason) that make use of international legal norms.
3. Here's the real low-hanging fruit: American judges can use foreign materials to "cast an empirical light" (the phrase is Stephen Breyer's) on modern problems. The best example of this -- which isn't very well known -- is Earl Warren's use of foreign legal evidence in Miranda v. Arizona (the case that gave us "Miranda rights").
For a semi-embarrassing reason I know a fair amount about what is, I'll admit, a fairly obscure topic. So if anyone objects I'll try to write more.