The general public has yet to take adequate notice of a dispute among the justices of the U.S. Supreme Court over what limits should be established on the court’s powers.
The court has quietly divided itself into those justices who believe it should consult and consider policies and legal precedents from other nations and those who think such policies and practices are irrelevant to the court’s deliberations.
Four current members of the court, including the two most recent appointees, have expressed doubts or outright opposition to the citation of foreign law, while five other members have expressed at least qualified support for the practice.
The issue is not a trivial matter. It has obvious implications for the future of the country and reflects an important disagreement among the court’s members.
For example, The New York Times, in an article last month, noted that Justice Ruth Bader Ginsburg, one of the court’s most liberal members, had delivered a speech in South Africa in which she defended the idea of consulting foreign law and policy, claiming that were such sources not consulted, “one category of potentially valuable information should be out of bounds.”
Justice Antonin Scalia has written decisions and made speeches criticizing the court’s citation of foreign law and policy in several cases, including those involving capital punishment and homosexuality, saying such citations have no place in the court’s decisions.
This issue has lately been kept alive because of additional comments by Ginsburg and the recently retired Sandra Day O’Connor. Both have made recent public comments strongly suggesting they equate criticism of the Supreme Court with radical or fringe groups supposedly set on destroying the court’s independence.
O’Connor gave a speech in March in which she said that a judiciary that was afraid to stand up to elected officials could lead to a dictatorship. Ginsburg said the courts were a safeguard against “oppressive government and stirred-up majorities.”
But there is absolutely no evidence that the independence of the judiciary is at risk. Criticism of the two other branches of government, by comparison, is relentless and unending. The Bush administration has been attacked for nearly everything from policies in Iraq to alleged indifference about obesity among the nation’s children. Congress is itself near historic lows in public opinion and is attacked daily, much of it clearly deserved. So why should the Supreme Court be immune from criticism and, more importantly, why should mere murmurs of criticism set off alarms that the nation is about to become a dictatorship or fall victim to the oppression of a “stirred-up majority”?
In addition, the arguments advanced in favor of citing foreign law make no sense. Ginsburg and other liberal members of the court have said foreign law and policy ought not to be binding on the U.S. court yet it must be considered. It seems far more logical to say it should be neither.
The most disturbing implication of recent speeches by Ginsburg and O’Connor is that the U.S. Supreme Court ought to be off-limits when it comes to direct criticism. Criticism of the court, they seem to say, leads to a lessening of respect for its work, feeds some kind of mob mentality and may, in fact, intimidate weaker members of the court into decisions that defer too much to other branches of government.
It is interesting that these alarms have been raised without specific evidence. While it may be perfectly understandable that a justice of the Supreme Court might wish nothing but public appreciation for his or her work, the record of the court doesn’t justify such deference, let alone a sense of reverence.
The court deserves all of the public scrutiny it gets and much more. Its practice of citing foreign courts and foreign law as elements in its most adventuresome decisions is only the most recent reason why the public should give this third branch of government closer attention.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His column appears on Wednesdays.
