Ginsburg's Foreign Law Fetish

Thursday, March 16, 2006
Supreme Court Justice Ruth Bader Ginsburg spoke recently in South Africa about the use of the law of foreign countries in the Court's decisions.

John Hinderaker of Powerline provides a detailed criticism of this concept:
"In reality, reference to foreign law is nothing more than an ad hoc tool to be invoked or ignored at will by justices who want to advance a left-wing agenda."

How do you choose which country's law? For Lawrence v. Texas, the homosexual sodomy case, why not choose the law of any Muslim country? Because politics, not the rule of law, guides judges like Ginsburg. The words of the Constitution mean nothing and can be twisted in any way to suit leftist political preferences.
The end justifies the means.


flenser said...

Paul Mirengoff suggests that she be impeached, or at least that she has commited impeachable acts.

If we had a Senate worth its pay it would at least vote to censure Ginsburg.

David Thomson said...

Ruth Bader Ginsburg is a poorly educated woman. She has never learned how to think and follow a logical argument. That Ginsgburg ever graduated from Harvard law school is truly a scandal. But what’s new? Mediocrity may be the norm in the soft science departments of this vastly overrated university. I am certainly not surprised. After all, Harvard is also the home of other silly people like John Kenneth Galbraith, the late John Rawls, and Stephen Breyer.

A judge who is guided by writings other than the U.S. Constitution has become a dictator. They rule not by the force of law, but tyranny. The law is literally whatever they think it is---and the hell with the voters who might disagree.

Fresh Air said...

Ginsburg is a disgrace. Sandra Day O'Connor is another (see her rant against the nascent "dictatorship" that will supposedly arise from criticizing the judiciary). I sincerely hope Bush puts a great female legal mind on the bench. It could use one.

Knucklehead said...


A judge who is guided by writings other than the U.S. Constitution has become a dictator.

I'm picking a nit here, perhaps, but the constitution is a pretty minimalist document. It needs the heck parsed out of it to try and figure out how to follow it through the course of the life of a complex and ever changing nation in a complex and changing world.

But there's no excuse for reaching outside of US legal history and tradition for judging cases before the US Spupreme Court that do not specifically include matters of international law based upon the treaties we have signed. None.

The US may be a "young" nation by some narrow application of historical standards but our legal system based upon a written constitution and 230 years of caselaw dwarfs anything else available both in terms of both scope and longevity.

Unfortunately the "checks and balances" placed upon the Supreme Court are thin and Congress seems completely unwilling to use even those. In a practical sense there are no constraints upon Justices and precious little upon federal courts.

I would be interested in hearing from our esteemed Legally Trained Yarbians about what checks and balances, should they be inclined to use them, are available to the Executive and Legislative branches for use against the Judicial branch.

For some reason it has become US tradition to treat the judicial branch as outside of any control beyond the appointments process. The systems was not designed for any of the three branches to be completely autonomous from the other two. Has there ever been a "seperation of powers" type argument/catfight, since Madison vs. Marbury, that suggests any check or balance against the judicial branch? Or is the appointment process the sum total of checks and balances available?

flenser said...


The executive branch can refuse to enforce the commands issued by the SC.

See Worcester v. Georgia, where Andy Jackson famously said, "John Marshall has made his decision, now let him enforce it."

So this approach has been taken in the past. Difficult to imagine today, but the change is noteworthy.

Congress also has the power to defund and disband the "inferior" courts, below the SC.

Congress can impeach a sitting justice on the SC. It has never been done that I know of, but there is no inherenrt reason it cannot be done.

Article III, Sec 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Note that the standard for removal here is failing to exibit "good behavior", not high crimes and misdemeanors.

brylun said...

As for checks and balances on the judiciary, there's appointment and impeachment. There's also passage of statutes to negate court rulings.

Roosevelt tried to pack the court to no avail.

If I recall the Federalist Papers, the intent of the lifetime appointment was to insulate the judges from the whims of politics, and the worry about the threat of losing their position as the result of an unpopular ruling.

So, the way to influence the court is by electing presidents and senators who stand up for principles in their judicial appointments.

flenser said...

There is technically no reason that Congress cannot remove any judge or justice at any time, based on the "good behaviour" standard. Chewing gum on the bench, Judge Smith? Out you go!

The limitation is political. There are large numbers of people who hold a hugly elevated opinion of the courts, and despise Congress. So I'm not sure Congress could get away politically with impeaching judges. But Constitutionally, there is nothing stopping them from doing so.


Article III does not state that judges shall have a life-time appointment. It states that they shall "hold their offices during good behaviour". That's all.
The life-time appointment bit seems to be a tradition which has grown up over the years.

Knucklehead said...

The Supreme Court is specifically established by the contitution (Article III, section 1). The congress may, and obviously has, established lower federal courts as they see fit. Article I-8 (and III-1) gives congress the power to establish federal inferior courts.

Neither I nor III It clearly provides congress the power to get rid of them should they decide we no longer need them.

Section 2 provided Congress a power that I don't believe they have ever exercised:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

This seems to say (and I don't have time to go looking through case law about it at the moment) that the congress has the power to make exceptions to what is within the scope of the Judicial Branch. They can, it seems, make regulations that they specifically exclude from the federal courts jurisdiction.

I don't have a good grip on what the theoretical limits or intent of that is.

In Federalist 80 Hamilton mentions this only wrt dismissing the objection that the Supreme Court would slip the leash of legislative control:

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconviences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages.

In Federalist 81 (Hamilton) mentions this but treats it only lightly as a way to brush off claims that the power of the Supreme and inferior courts was intented to do away with local trial by jury.

Ummm... I ain't as smart as Hamilton was and I'm missing some of his points here. It seems to me the Judiciary is quite good at slipping the leash and that Congress has never, at least not that I can detect, removed anything from the jurisdiction of the courts.

I'm too lazy to go reread 82 and 83 but it seems that Hamilton/Publius argued that the checks and balances on the federal courts were:

1. they have not power to enforce their decisions (the Andrew Jackson thing mentioned earlier demonstrates this but refusal to abide by SCOTUS decisions seems rare if not limited to the unique case of Jackson and whatever the heck that decision was - I seem to recall it forbid him to do the Trail of Tears thing but he just ignored it)

2. Congress can make whatever exceptions it wants.

The only remedy, in practice, for a judiciary which slips the leash is correction, slowly over time, using appointments.

In retrospect the cases Hamilton made in 81 and 82 seem a bit weak ;)

Knucklehead said...


I'm on board. Congress should pass a very quick law that says, for the purposes of removing justices, it is not "good behavior" to use the laws of other nations to arrive at US federal decisions. So much as think about citing a furrin law in a court decision and yer outta here, go get a real job.

flenser said...

I'd add (3). Congress has the power to impeach any judge or justice, on grounds far less demanding than that required for removing a president.

In addition to being spelled out in article III, this is also mentioned in Federalist 79.

"But with regard to the judges, who, if they behave properly, will be secured in their places for life, .."

(Iitalics mine)


"They (judges) are liable to be impeached for malconduct by the House of Representatives, and tried in the Senate, and if convicted may be dismissed from office, and disqualified from holding any other."

Seneca the Younger said...

See Worcester v. Georgia, where Andy Jackson famously said, "John Marshall has made his decision, now let him enforce it."

Flenser, as someone with both Cherokee and Choctaw ancestry, I've got to admit I don't find this precedent very comforting.

Syl said...

Look, Ginsburg is not stupid, not uneducated, and can think logically.

She's just wrong.

And Sandra does have a point. I don't think we shouldn't criticize our judges, but we still need to respect the institution. We saw the erosion of that respect after the 2000 election and it wasn't pretty.

Seneca the Younger said...

Knuck, you're close to right on Worcester v. Georgia: the Supreme Court held that Georgia couldn't impose its laws within the Cherokee Nation's land. The Removal was a consequence, but was enforced by Van Buren (spit).

flenser said...

Seneca, I'm sure you would not suggest that constitutional issues be settled on the basis of how an individual feels about them.

In any event the case illustrates a point; that the courts in the modern era are treated with extraordinary deference compared with times past. The courts themselves seem disinclined to accept any checks or balances. What would you suggest be done?