Jurisdiction Stripping: Foreign Law

“Although I doubt the current measures [seeking to prohibit federal courts from referring to foreign laws or rulings in interpreting the U.S. Constitution] will garner sufficient votes to pass, it is disquieting that they have attracted sizeable support. And one not-so-small concern — they fuel the radical fringe.”
—U.S. Supreme Court Justice Ruth Bader Ginsburg, quoted in Legal Times in March 2006 (emphasis added). Ginsburg explained that a Feb. 28, 2005, web chat posting called on “commandos” to make sure Ginsburg and Justice Sandra Day O’Connor “will not live another week,” charging that the two targeted justices invoked foreign laws and rulings.

Proposals have suggested limiting the sources judges may cite in making their decisions — specifically, preventing judges from considering foreign sources of law. These proposals are a reaction to a recent decision that declared it illegal to put mentally handicapped capital criminals to death, as well as the 2003 Lawrence v. Texas decision. Each decision referred to foreign sources of law. In Lawrence, the court looked to such sources as a way to expose flaws in the 1986 Bowers v. Hardwick decision claiming that “proscriptions against [same-sex] conduct have ancient roots.”

“It’s none of [Congress’] business. No one is more opposed to the use of foreign law than I am, but I’m darned if I think it’s up to Congress to direct the court how to make its decisions. … [Proposed legislation prohibiting or discouraging the court from citing foreign sources of law] is like telling us not to use certain principles of logic.” - Justice Antonin Scalia, who commented on proposed legislation concerning the judicial references to foreign law.