By Charles Lane
Washington Post Staff Writer
Friday, May 19, 2006
Justice Antonin Scalia rebuked fellow conservatives on Capitol Hill yesterday, saying they have gone too far in trying to prevent the Supreme Court from using foreign law in its constitutional rulings.
Scalia dissented vigorously from the court's recent decisions that invoked foreign law to help strike down the death penalty for juveniles and laws against consensual homosexual conduct. In Congress, conservative Republicans responded angrily to the rulings and introduced bills that would either condemn or ban the court's use of foreign legal authorities.
But in his speech to a National Italian American Foundation luncheon attended by several House members, Scalia said, in effect, that he does not need any help.
"It's none of your business," he said, referring to Congress. "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."
The proposed legislation "is like telling us not to use certain principles of logic," he said, adding: "Let us make our mistakes just as we let you make yours."
It was not the first time Scalia had publicly questioned the proposed legislation, but it was his most categorical statement. Previously, he focused on what he considered the bills' inappropriate acceptance of legislative history as a tool of judicial interpretation.
Scalia's remarks came about three months after Justice Ruth Bader Ginsburg, a strong supporter of the use of foreign law, denounced members of Congress who oppose it, saying that their condemnation of the court might have contributed to Internet threats against the court by extremists.
Though Scalia did not echo that sentiment, his comments showed that, for all their disagreements, he and his colleagues on the court have a shared institutional interest in judicial independence.
Rep. Tom Feeney (R-Fla.), who has co-sponsored a nonbinding resolution against the use of foreign law, said that Scalia's comments were "like being told your favorite baseball player disagrees with your approach to hitting."
Scalia's "brilliance," Feeney said, "has not convinced a majority of the court. He needs our help, even if he doesn't want it."
Feeney said that Scalia's remarks may have damaged chances for his resolution's passage, since they will probably be quoted by its opponents.
Ginsburg and other foreign law supporters on the court, including Justices John Paul Stevens, Anthony M. Kennedy, David H. Souter and Stephen G. Breyer, say that citing foreign authority helps build transnational links to other courts and informs U.S. judges but does not bind them as U.S. law does.
Scalia has argued that his colleagues have used foreign law to support decisions that would otherwise have no basis, and that they cherry-pick foreign precedents that support their views. "You will never see foreign law cited in any of our abortion cases because we're one of the few countries that permits abortion on demand," Scalia said yesterday.
He seemed to enjoy the irony, though, of chiding congressional conservatives, joking that "part of my charm is that I tell people what they don't want to hear."