In April 2009, Supreme Court nominee Sonia Sotomayor delivered a speech to the Puerto Rican chapter of the American Civil Liberties Union (ACLU), where she made it clear that the Court’s citation of foreign and international law was proper, and indeed laudable. Sotomayor has not yet cited international law in any of her own written opinions, so in light of her speech to the ACLU of Puerto Rico, Senators must press her regarding her view on the subject. Heritage fellow Steve Groves identifies some lines of questioning including:
- In your speech to the ACLU of Puerto Rico, you expressed your fear that the U.S. Supreme Court may “lose influence in the world” if it was not more open to discussing the ideas raised by foreign and international courts. Do you believe that it is the proper role of a justice of the Supreme Court to decide cases based on whether the decision will influence the jurisprudence of foreign courts? If so, how great a factor should the desire to influence foreign courts play in interpreting the Constitution?
- Recent Supreme Court cases such as Roper v. Simmons (regarding the juvenile death penalty) and Lawrence v. Texas (regarding the criminalization of homosexual acts) have caused controversy since the majority opinion in those cases cited foreign law, international law, and the “opinion of the world community” in reaching a decision. You spoke favorably as to both of those opinions in your recent speech to the ACLU of Puerto Rico. By what criteria should foreign decisions be cited? Should the Court really be looking to adopt norms outside of the American tradition when deciding cases regarding controversial “values” issues such as the death penalty and homosexuality?
- In your speech to the ACLU of Puerto Rico, you stated that citing to foreign and international law in cases such as Roper v. Simmons and Lawrence v. Texas was proper, since it would “help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.” What exactly constitutes the “mainstream of human thinking”? Since much of American constitutional jurisprudence falls outside of the mainstream–i.e., the U.S. Constitution has been interpreted to provide broader protection for free speech and abortion than in most (if not all) of the world–how is it that America’s more illiberal neighbors within “the world community” should influence the Court’s decisions?