| Legal world looks to WCL as Justices Scalia, Breyer discuss judicial philosophy
BY MIKE UNGER   The spectacle Thursday inside a sixth-story classroom at the Washington College of Law was as extraordinary as it was entertaining: Supreme Court justices Antonin Scalia, left, and Stephen Breyer, right, nearly a quarter of the United States’ most powerful judicial body, indulged in an engaging and enlightening conversation on the impact foreign legal decisions should have on U.S. constitutional law.
With scores watching in person, hundreds of others viewing via remote feed in adjoining classrooms, and thousands more across the country tuning in to watch live on C-SPAN, American University became for 90 minutes the epicenter of the legal universe. The justices don’t often venture away from the court for public discussions of legal theory, thus Thursday’s lively give-and-take drew intense attention from the national press. Adding to the intrigue was the fact that Scalia generally shies away from the media spotlight, and that his name has surfaced as a possible replacement for Chief Justice William Rehnquist. From the outset, moderator Norman Dorsen, a New York University law professor who is friendly with both Scalia and Breyer, proposed questions that prompted radically different responses from the men. The legal icons, perched at opposite sides of the ideological spectrum, frequently clashed and occasionally agreed during the amicable dialogue which they both appeared to enjoy immensely.
Scalia, known as one of the court’s most conservative members, left little doubt in his opening remarks as to his general position on the issue. “I do not use foreign law in interpretation of the U.S. Constitution,” he said. “You have to ask yourself why is it foreign law would be relevant? If you told the framers of the Constitution that we want to do something that would be just like Europe, they would have been appalled.” Before addressing Scalia’s philosophical point, Breyer countered with a self-deprecating line that elicited laughter from the transfixed audience. “Out of the 10 times people ask me, ‘Are you on the Supreme Court?’ nine of them thought I was Justice [David] Souter,” Breyer said. “There are many ways in which foreign law influences U.S. law. Foreign law doesn’t bind us, of course. What’s the harm or risk about considering foreign sources? Why shouldn’t the U.S. consider decisions that take into account shifting world standards? Are we that far from the rest of the world in the way life is lived?” Breyer maintained that the controversy surrounding the topic is magnified because of the nature of the cases in which foreign law has played a role. In 1999 he cited a Zimbabwean judge in a death penalty decision.
Photo by Jeff Watts
Supreme Court justices Antonin Scalia, left, and Stephen Breyer, right, responded to questions posed by moderator, Norman Dorsen, center.
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“Is it cruel and unusual punishment to hold a person on death row for more than 20 years before executing them?” Breyer said, recalling the case. “Where do I look? Your own moral views are not the answer, [so] you look to other places. I found opinions in England, Canada. I cited things both ways. I don’t think that’s controlling. On this kind of an issue you really have a human question. The Americans are humans and so is everyone else.” Scalia was incensed. “What does the opinion of a Zimbabwean judge have to do with what Americans believe?” he said. “Unless you believe it’s been given to you to make a moral judgment, I don’t see how it’s relevant at all.” Breyer held that he would rather have the option of examining foreign decisions—on both sides of issues—than adhere to a blanket rule barring the practice. “My job each day is [to] read and write,” he said. “What am I reading? I am reading briefs. Briefs, all the time, explain laws to me that I don’t know. You never know where you’re going to get your information from. What is at issue is the extent to what you might learn from other places, facts that would help you apply the Constitution of the United States. What I see in doing this is what I’d call opening your eyes to things that are going on elsewhere.” Scalia views his role on the nation’s highest court in an entirely different light.
“My theory of interpreting the U.S. Constitution is I try to understand what it meant when it was adopted,” Scalia said. “If you have that approach then obviously foreign law is irrelevant with one exception: Old English law. So the reality is I use foreign law more than anyone on the court.” |
