re: #646 jvic

I have no problem with Breyer reading foreign jurisprudence. When he cites it, he is stepping on a slippery slope that, he assures us, is not steep enough to worry about. Uh huh. Yeah sure.

After all, when we have an indispensably smart guy like Breyer interpreting American the law, it’s only natural that he’d check with the indispensably smart people in other countries, right? /

(I tried to keep this comment more or less civil. My actual reaction is a good deal more vehement than what I typed.)

I appreciate your civility and will strive to respond in kind.

Here’s my view, more broadly expressed:

The U S Supreme Court can and should draw from the brightest thinkers and find the best ideas that it can as it does its job. (As should we all.) The marketplace of ideas knows no national boundaries. Some issues will be of such parochial interest to us that there won’t be any foreign commentary worth considering, but on other topics of broader interest there might be. But whether it is a study from the Heritage Foundation or a court opinion from the International Court of Justice, ideas are ideas. And our Supreme Court Justices are free and should be free to explore those ideas and weigh them on their merits. And if they find one of those ideas to be useful in determining how to rule in a case before them, they should avail themselves of that idea and say so.

I take your comment to mean (and I apologize if I paraphrase poorly) that you are OK with them reading foreign thinkers but not citing them. I am not sure I get the distinction. Whether Breyer says what he read or not, what is binding on lower Courts is the holding of our Supremes, not the content of a cited study or opinion. And if lower courts misconstrue what the Supremes said or meant, there is the appellate process to fix that.

Unless we are going to an interpretive scheme that says the only thing the Supremes can consider is the original text plus some pre-approved list of other sources (a result I consider to be absurd on its face), them we should want them seeking out the best ideas they can, and we shouldn’t want them being disingenuous about their source. A sort of intellectual “don’t ask don’t tell” policy accomplishes nothing. After all, by citing the foreign source, Breyer would open up the discussion further, as readers could go to that source and see whether Breyer interpreted it correctly. That offers another line of argument to the opponents of whatever position Breyer might be taking on the issue at hand.

If I misunderstood your point, I apologize in advance. Let me know if I am in the ballpark.