USA TODAY
January 14, 2005, Friday, FINAL EDITION
SECTION: NEWS; Pg. 3A
LENGTH: 576 words
HEADLINE: High court justices hold rare public debate
BYLINE: Joan Biskupic
DATELINE: WASHINGTON
WASHINGTON -- Shed of their black robes, Supreme Court Justices Antonin Scalia
and Stephen Breyer engaged in a lively and, at times, amusing debate Thursday
over whether foreign court rulings should be used in U.S. decisions.
"We don't have the same moral and legal framework as the rest of the world, and
we never have," said Scalia, who is one of the strongest voices on the high
court against looking to foreign rulings to decide American cases.
Breyer countered, "You can learn something" from foreign countries. He said it
is a matter of "opening your eyes to things that are going on elsewhere." He
said he does not consider foreign decisions "determinative" but "simply, from
time to time, relevant."
Sitting in upholstered chairs in the well of an American University auditorium,
the two justices laid out their views in a rare public session. Their
conversation was moderated by New York University law professor Norman Dorsen
and co-sponsored by the U.S. Association of Constitutional Law and American
University.
Supreme Court justices increasingly have referred to foreign law but not without
dissent in their own ranks or public controversy. In 2003, when the majority
struck down state anti-sodomy laws, it mentioned that the European Court of
Human Rights has affirmed the right of homosexual adults to engage in sexual
conduct. A year earlier, when the majority barred the execution of mentally
retarded convicts, it noted that "within the world community" such executions
are "overwhelmingly disapproved."
Some members of Congress have denounced such references. Last year, Rep. Tom
Feeney, R-Fla., introduced a resolution criticizing the court for citing foreign
legal authority. The resolution drew several co-sponsors but was not adopted by
the full House. Shannon Conklin, a spokeswoman for Feeney, said Thursday that he
intends to reintroduce the resolution.
Scalia and Breyer, both former law professors, appeared to relish expounding on
their competing approaches. "I'm not preventing you from reading these cases,"
Scalia said, "just don't put it in your opinions."
Scalia, who dissented from the gay rights and death penalty decisions, argued
that the danger of foreign law is that it can be taken out of its native soil
context or used only when it helps a position. "We are one of only six countries
in the world that allows abortion on demand prior to viability," he said, noting
that the Supreme Court majority has not been guided by that. "Do we just use
foreign law selectively?"
Scalia, who was appointed in 1986 by President Reagan, emphasized that judges
should decide cases based solely on the U.S. Constitution and its 18th-century
context.
Breyer, who was named to the bench by President Clinton in 1994, argued that
judges can draw guidance -- not hard rules -- from foreign sources. He observed
that the Supreme Court increasingly is faced with international problems, from
global antitrust disputes to terrorism. "Those are the cases we're getting. And
that reflects the truth about the world."
There were many moments of levity between the two justices during the
hour-and-a-half session that also was broadcast by C-SPAN.
Breyer quipped at one point that he usually goes about his life unrecognized. He
said that the few times people have asked him if he was on the Supreme Court,
they thought he was Justice David Souter.
Chimed in Scalia, "And he went along with it!"