Justifying Judicial Activism

Justice Ginsburg defends judicial reliance upon international jurisprudence

Spotting a judicial activist is fairly easy. Justice Thurgood Marshall, for example, had his “do what you think is right and let the law catch up” approach. Equally as telling is a yearning for reliance upon international law.

Justice Anthony Kennedy cited trends in British Parliament and case law in the European Court of Human Rights while weighing a decision in the seminal 2003 Texas sodomy case, Lawrence v. Texas.

Justice John Paul Stevens has looked to international practices on several occasions, most notably with regard to capital punishment.

Former Justice Sandra Day O’Connor, who tore away at the U.S. Constitution so much and so often that, during the opening ceremony of the National Constitution Center here in Philadelphia, I’m convinced the Constitution tried to hit her back, has expressed her opinion that “conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts.”

And Justice Ruth Bader Ginsburg, who has previously complained that the U.S. Supreme Court fails to “look beyond one’s shores” and that “a too-strict jurisprudence of the framers’ original intent seems too unworkable,” was showing her activist roots again this past Friday in an appearance at the Moritz College of Law at Ohio State University, defending the use of international law by American judges.

“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Ginsburg said.

Keep in mind that I am only a law student, and that the only robe I own is made from terrycloth. That being said, it doesn’t take a legal scholar to recognize why judges are appointed for life (save for in some lower courts, of course). Simply put, judges are appointed and not elected because they are not supposed to be policymakers. A judge’s role is as arbiter, not politician, and judicial decisions should be based not on a judge’s political ideology nor personal beliefs, but on the interpretation of the law. The Constitution governs. Our Constitution.

Ginsburg even tries to justify the use of international law by lamenting that the U.S. Supreme Court is not listened to by overseas courts because it does not listen enough to foreign decisions itself. “You will not be listened to,” she said, “if you don’t listen to others.”

I don’t care. I don’t think our founders would have, either.

The job of the United States Supreme Court is not to consider, as binding, persuasive or otherwise, judicial determinations from outside our borders. Our founders, the men Ginsburg and her friends are charged with interpreting, would be absolutely livid at the very thought of a judge looking outside our system of government. These imperfect men penned each and every phrase and provision of our founding documents for a reason; they knew not so much what they wanted America to become as they knew what they did not want for Her. Consideration of international jurisprudence on any level other than mere intrigue or bathroom reading is a slap to the face of the system established by our forefathers and is a direct subversion of our Constitution.

See, there’s a reason why Supreme Court Justices like Ruth Bader Ginsburg will look to anything but our founding documents when searching for a decision. Activist judges like Ginsburg, who once lauded “boldly dynamic interpretation, departing radically from the original understanding” of the Constitution, have so radically deviated from the intended role of the Court that they are forced to search far and wide for authority–any authority–that could possibly justify their activism and departure from the ideas and ideas set forth by the framers.

It’s the judicial equivalent of a podiatrist doing open-heart surgery, just cutting here and snipping there, performing the procedure based upon whatever feels right and looks right . . . and then looking through each and every medical book and journal looking for something similar so he can, in turn, tell the malpractice board: “Here, this is how I did it! I was just following these instructions!”

Or, in other words — do what you think is right, and let the law catch up.



  1. Rix says:

    You see, I have this curious theory. As everyone knows, there are three branches of power. It so happens that each modern regime type – socialism, theocracy, and democracy/republic – dies when one chokes out the others.

    With socialism, under which I had a questionable pleasure to live for two decades, it is the executive; both legislation and jurisprudence were a joke in the USSR and, as I heard from colleages, still are in China. Theocracy is fully dominated by its law-setting religious authorities, both its executive and judicial branches being subservient to the holy word. The Western democracies, however, are apparently bound to eventually fall prey to their judicial activism, proving my theory but, unfortunately, destroying the world around me as they go.

    Unfortunately, there is no cure to it. Whatever degree of vigilance is applied to judicial appointments, activist judges will happen once in a while and, safe for life in their possibly-noble but misguided efforts, will continue to erode the rule of law and destroy the society that elevated them.

  2. Anonymous says:

    We have three branches of government for a reason in this country…each to check the other. Furthermore, there is a reason our Constitution was written; separating itself in concept from other nations. We may all live on the same planet, but thankfully, our Constitutional freedoms and responbilities define us as uniquely different. That is something to be celebrated, not muddied or otherwise purposefully denigrated.

  3. Anonymous says:


    You must comment on the save of the captain from the pirates. I don’t like Obama either, but this is newsworthy, and for the first time in nearly 100 days I am happy with an action from our commander in chief. If somehow it was not Obama’s statement or doing, please comment on that as well.

    Make sure you don’t ignore things like the rest of the news media ignores things from the right.

    Thx for all you do.

  4. whats_up says:

    I dont know Jeff, our founding fathers got their ideas from all over the world on how to set up this system of government. To now claim that they would be upset that we are looking outside of it I dont think is accurate. I dont think that they would be mad that we continue to look around us and see what is going on.

  5. CAL says:

    It is disappointing that republican presidents have appointed many of these judicial activists. Our constitution is so far gone, I do not even know if it is relevant anymore. The federal government has gotten out of control in terms of its size and scope. Americans needs to wake up. If there is a tea party in your area on April 15th – go to it. We need to show our elected officials that we are fed up with taxes and spending. We do not exist to feed an ever hungry federal bureaucracy. We exist to pursue our own self interests within the bounds of the law and by doing so society as a whole benefits from the fruits of our individual labor.

  6. Ian Thorpe says:

    Here’s what is going on Jeff. After the G20 conference, while the discussons were being picked over on a late night news review show the presenter said: “so the aim is to create a global economy.”

    One of the talking heads said, “Yes but the real task is to create not just a global economy but a global culture”

    Unfortunately I was very relaxed having had a couple of glasses of wine and I jotted down the comment but not who said it.

    Sloppy journalism I know, even by blogger standards. :)


    Anonymous said…


    You must comment on the save of the captain from the pirates. I don’t like Obama either, but this is newsworthy, and for the first time in nearly 100 days I am happy with an action from our commander in chief.

    On its way, as soon as I have time.


    whats_up, oh they would see what is going on, and would have no part of it. Are you serious? What liberal womb did you spring forth from?

  9. suek says:

    >>I dont think that they would be mad that we continue to look around us and see what is going on.>>

    Indeed – as long as the looking around is done by legislators elected by the people.

    Judges, on the other hand, are not supposed to have that luxury. The job of a judge is to judge whether the laws – those passed by legislators who are elected – are being followed, and whether the law is consistent with the Constitution. Their job is _not_ to determine whether a law is a good law or a bad law. Theoretically, we the people have that job, and are supposed to re-elect or not re-elect legislators based on whether _we_ – the governed – think the laws passed are good or bad.

    Judges are supposed to give justice due only in the sense that _all_ persons are treated equally under the law…regardless of class or wealth. Their job is _not_ to "see that justice is done" in the sense that they should level the inequities of life. Nobody can do that in this life. Judges are not gods, though they may assume that role.

  10. Anonymous says:

    This comment by Ginsberg is VERY telling. She’s simply laying the ground work for her replacement “in waiting.” Typical method of desensitizing the public.

    The State Department legal advisor appointee, HAROLD KOH, should he be approved, will be the launching pad for his Supreme Court nomination.

    This Obama appointee should frighten the hell out of all of us. He’s extremely RADICAL. He is a self proclaimed Transnationalist NOT a Constitutionalist. He’s been quoted as saying he believes the distinctions between U.S. and International law should vanish! He also believes in Sharia Law.

    Given this pending approval of Koh, this statement by Ginsberg should come as no surprise.

    Contact your representatives and ask them to vote AGAINST Harold Koh, or we’re all in deep trouble.

  11. Anonymous says:

    We all are so happpy with the rescue of the Captain and appreciate ANYONE who had a hand in implementing this event…I had hoped that Obama would trust our military to do what they are trained to do, so I am very pleased. I will complement him for authorizing this action. I hope he has found a new appreciation for those brave men and women who serve in our military…they should be supported fully, financially, with extensive benefits and assistance to their families and thru our prayers for without their courage, where would we be? I realize that some cut backs may be necessary for certain programs but I hope those are scrutinized carefully to insure we will not diminish our strength. God Bless Our Military!! I wish the POLITICIANS in Washington had a little of the courage and patriotism that our soldiers exhibit every day. Unfortunately, the majority of our problems are caused by POLITICIANS…we must remind them when they are throwing zillions of dollars around that our soldiers and their families deserve the highest consideration!!



    Everybody read ‘The 5,000 Year Leap”. Especially YOU, whats_up.
    And then you might want to read “The Real George Washington” for extra credit. Get to know your founders and their blueprint for America.

  13. The Duelist says:

    Take a closer look at our early judicial history, and you’ll see that the decisions of English courts were constantly used as persuasive authority. If our founders would be livid at the consistent use of English law, they don’t appear to have addressed it.
    You’re a law student. If your 1L classes were at all like mine, you covered one or two English cases used as persuasive authority and cited to in later U.S. cases in each basic class other than Constitutional Law. Hadley v. Baxendale is one obvious example.
    The use of foreign law as persuasive authority is nothing new; it’s as old as American jurisprudence itself.

  14. JEFF SCHREIBER says:

    Agreed, Mr. Duelist, but this is different. At least, the reason for looking to extraconstitutional authority is different…

  15. Gail B says:

    What’s_up very well could be a youngun, because schools today don’t teach what they used to in civics and American history.

    I don’t need to say anything more on the subject, because everybody (except What’s_up) gets it!

  16. Anonymous says:


    I heard someone make a statement the other day about how decisions on cases are made. Decision/rulings are made based on previous case rulings citing said case – i.e. Roe vs Wade.

    This practice has strayed from the how decisions were originally made….namely citing THE CONSTITUTION to determine the outcome of the case. Do you know what administration this shift occurred?

    If this is so, then the statement by Ginsburg isn’t surprising. After all, she’s just expanding our “legal” borders following the same path of expansion being done by the powers that be.

    Just another piece of the puzzle to fit in place.

  17. Carlyle says:

    Bravo Jeff. Spot on.

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