While we did borrow much of Britain’s common law framework at our founding, for over 200 years our nation has survived just fine by relying on our own judicial precedents when deciding Supreme Court cases. But as Heritage research associate Deborah O’Malley explains, that is very much in danger of changing:
Some Supreme Court justices have taken to using international law as a reference point to interpret provisions of the U.S. Constitution. Yale Law School Dean Harold Koh applauds the practice, hailing these justices for ushering in the dawn of a “transnationalist jurisprudence.”
Not everyone is as pleased. Many — lawyers and laymen alike — think it shows a blatant disregard for national sovereignty. They lament that future lawyers attending one of the nation’s most elite law schools are being inculcated with this misguided theory. Even more worrisome: Dean Koh is heavily rumored to be at the top of Barack Obama’s Supreme Court short list — bad news for those who wish to stop this theory’s pernicious growth within the judiciary.
Of course, liberals do not even try to apply their “transnationalist jurisprudence” in a even handed fashion. Instead they blatantly cherry pick only those precedents that support their narrow world view. O’Malley explains:
Yet these justices quickly shun the hands of their global brethren when addressing certain issues, revealing a curious selectiveness in their eagerness to “learn” from other nations. Justice Antonin Scalia has pointed out that the Court “said not a whisper” about international law in the series of abortion cases, one of which was authored by [Justice Stephen] Breyer. They were conveniently silent about the fact that the vast majority of nations place more restrictions on abortion than the United States.
Their disregard of international abortion standards is just one example of how these judges, despite their lofty rhetoric, use international law as a tool to elevate their own policy preferences to a constitutional level. When international law cuts against their agenda, it’s of no utility whatsoever.
