The Use of Foreign Sources in Supreme Court Decisions: Why Is It an Issue Today?

-- By WenweiLai - 25 Feb 2010

After 2002, suddenly justification is needed for the Court to cite foreign sources.

In recent years, the use of foreign sources in Supreme Court decisions has become a hotly debated issue. After the Court in Lawrence v. Texas (2003) cited a European Court of Human Rights decision to overrule Bowers v. Hardwick (1986) and strike down a Texan law banning sodomy, House Republicans even introduced a resolution stating that “foreign authorities should not be used at all for U.S. cases,” except in some special instances. In fact, the issue was discussed and largely resolved almost 200 years ago. In Evans v. Eaton (1822), Justice Story cited several English decisions (the ones made after Independence and thus not accepted into American law) in a patent case, drawing criticism from Justice Livingston’s dissent: “…we should be extremely cautious in adopting the rules which have been introduced into other countries, and under laws not in every respect like our own, however respectable the tribunals may be which may have prescribed those rules.” Later, in Pennock v. Dialogue (1829), Justice Story cited English decisions in another patent case, this time without any dissenting opinions. Since then, there had been no dispute on this issue for a long time. For example, in Bradwell v. State (1872), the Court held that women were not allowed to practice law, because this was unheard of in England.

However, when the Court cited international sources in Atkins v. Virginia (2002) to declare executions of mentally retarded criminals unconstitutional, the conservatives argued heavily against anything that was not enshrined in the original meaning of the Eight Amendment, foreign sources included. Following the decision, various law review articles started debating this issue. All of a sudden, the dormant volcano erupted again.

The political context: the United States became more anti-international and leaned toward unilateralism.

Examples: the refusal to join the ICC and the illegal war in Iraq.

The justification for these acts provided by the government is strikingly similar to the arguments against the use of foreign sources.

Analysis of the arguments provided by the conservatives in the dissenting opinions and their supporters in law review articles: political arguments masked as legal arguments.

Driving force behind the political movement?

After September 11th, a need to reassert the popular sovereignty?

Or a more cynical view: just the means to extend American hegemony?

Which view is closer to what is (or was, hopefully) really going on?