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.