For weeks, we have been discussing how Judge Sonia Sotomayor could result in the loss of ground for liberals on the Supreme Court given her sometimes conservative voting record in areas like free speech, student rights, and police abuse. One such area concern the use of foreign judgments. She is replacing a jurist who did rely on such judgments, but today Sotomayor aligned herself with Scalia, Thomas, Alito, and Roberts in rejecting the use of such judgments –even to “influence” decisions. It was one of the few substantive moments in the hearings.
The use of foreign judgments has come up repeatedly in recent cases concerning the death penalty and treatment of detainees. In Simmons v. Roper, Justice Kennedy ruled that foreign sources of law can in fact be used as part of the basis for the Court’s rulings.
Sotomayor today rejected even the notion that such judgments could be used as precedent or persuasive authority. That would give a clear majority on the Court for the first time in decades in rejecting such sources.
Here is the exchange:
COBURN: You’ve been fairly critical of Justice Scalia’s criticism of the use of foreign law in making decisions. And I would like for you to cite for me, either in the Constitution or in the oath that you took, outside of the treaties, the authority that you can have to utilize foreign law in deciding cases in the courts of law in this country.
SOTOMAYOR: I have actually agreed with Justice Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to the things American law permits you to. And that’s in treaty interpretation or in conflicts of law because it’s a different system of law. I…
COBURN: But I accepted that. I said outside of those…
COBURN: In other areas where you will sit in judgment, can you cite for me the authority even given in your oath or the Constitution that allows you to utilize laws outside of this country to make decisions about laws inside this country?
SOTOMAYOR: My speech and my record on this issue is I’ve never used it to interpret the Constitution or to interpret American statutes is that there is none. My speech has made that very clear.
COBURN: So you stand by the — there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes?
SOTOMAYOR: Unless the statute requires or directs you to look at foreign law. And some do, by the way. The answer is no. Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.