The discussion between the two men is fascinating, and I found myself annoyed at the fact that this sort of thing happens so seldom. As far as I'm concerned, the Supreme Court is cloaked in far too much mystery and mystique for a free republic, and I think these justices ought to be expected to appear on Meet the Press or Larry King Live just as often as senators and presidents do.
The "debate" (though it's not technically a debate) is instructive on many levels, not the least of which as an object lesson on the hilariously pompous verbosity of most lawyers. The audience and pool of questioners was comprised entirely of lawyers and law students, and they were absolutely spellbinding in their ability to launch into extended bloviations that droned on and on, seeming to finally draw near a question or definitive statement for a fleeting moment only to suddenly veer back again at the last second into the ditch of verbal obscurity. Several of the attorneys babbled on so obliviously that one began to sense that they were actually using the debate as an audition, as if just the right combination of circumlocutions and palaverous verbiage would cause Breyer and Scalia to shout "Eureka!" and instantly install them on the Supreme Court by fiat. It's quite telling that the least long-winded and tedious of the entire bunch were the justices themselves.
On the substance of the issue--the role of foreign law in Supreme Court decisions--I think Scalia clearly won the day, though both acquitted themselves nicely. Breyer was not, perhaps, the best representative of the foreign law position. Repeatedly, he stressed that in his own mind, the role of foreign court decisions is purely informational and not controlling. Said Breyer:
[Foreign rulings are] relevant in the sense that you have a person who's a judge, who has similar training, who's trying to, let's say, apply a similar document, something like cruel and unusual or -- there are different words, but they come to roughly the same thing -- who has a society that's somewhat structured like ours. And really, it isn't true that England is the moon, nor is India. I mean, there are human beings there just as there are here and there are differences and similarities. And so one is not trying to figure out the meaning, really, of the words "cruel and unusual punishment," one is trying to deal with their application.If there were going to be any role for foreign law (which I, with Scalia, think there should not be), this would probably be the most proper use of it. But the problem is, such a moderate approach to foreign law is not the one we're seeing rear it's ugly head lately in the Supreme Court. Far beyond use for mere applicational information, Sandra Day O'Connor has said that foreign law should be used to "create that all important good impression" worldwide, and that "over time [the Supreme Court] will rely increasingly" on foreign law.
Justice John Paul Stevens, ruling on the issue of the death penalty being imposed on retarded people, justified his decision by saying:
[W]ithin the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved...And Justice Anthony Kennedy relied almost exclusively on foreign law in suddenly discovering a right to homosexual sodomy in the U.S. Constitution in the Lawrence v. Texas case.
The ultimate issue, as Scalia makes clear in the debate, is this: foreign opinions about what is good and bad, what works and does not work, are entirely irrelevant when it comes to interpreting the U.S. Constitution and American laws. The reasoning of foreign judges, whether excellent or poor, is irrelevant because they are interpreting other laws. They're not interpreting the U.S. Constitution, nor are they interpreting and applying American laws. The starting point from which they reason is, by neccessity, entirely different.
Thus Scalia is right when he says that the use of foreign law is only a tool for implementing a desired result. Only if a judge has already decided on a particular outcome does it make any sense for him to resort to foreign opinions for support. If a judge's job is to intepret and apply the American law, then the rulings of those with different laws has no bearing whatsoever. If, on the other hand, a judge's job is to implement the outcome that she thinks best--in other words, if she is determined to enact a particular agenda--then it becomes very tempting to find support for that result wherever she can. And if she can find no support in American jurisprudence, she will selectively look elsewhere to find the justification for her predetermined conclusion.