The Rule of Law

I am posting this story from Coldfury, by way of Eschaton:

Supreme Court Justice Anthony M. Kennedy is a fairly accomplished jurist, but he might want to get himself a good lawyer—and perhaps a few more bodyguards.
Conservative leaders meeting in Washington yesterday for a discussion of “Remedies to Judicial Tyranny” decided that Kennedy, a Ronald Reagan appointee, should be impeached, or worse.
Phyllis Schlafly, doyenne of American conservatism, said Kennedy’s opinion forbidding capital punishment for juveniles “is a good ground of impeachment.” To cheers and applause from those gathered at a downtown Marriott for a conference on “Confronting the Judicial War on Faith,” Schlafly said that Kennedy had not met the “good behavior” requirement for office and that “Congress ought to talk about impeachment.”
Next, Michael P. Farris, chairman of the Home School Legal Defense Association, said Kennedy “should be the poster boy for impeachment” for citing international norms in his opinions. “If our congressmen and senators do not have the courage to impeach and remove from office Justice Kennedy, they ought to be impeached as well.”
Not to be outdone, lawyer-author Edwin Vieira told the gathering that Kennedy should be impeached because his philosophy, evidenced in his opinion striking down an anti-sodomy statute, “upholds Marxist, Leninist, satanic principles drawn from foreign law.”

I wanted to talk about this notion that it is somehow wrong for American courts to look to laws from other countries when making decisions that affect Americans. Because this is another glaring example of where the radical right froths at the mouth out of stupidity.

In the first place, American jurisprudence is based upon two foundations: law that has been codified into statutes, and common law. Common law is court precedent. Courts recognize a hierarchy of precedent – very generally, decisions of a higher court have more weight than do those of a lower court. In state courts, opinions from the courts of other states are not recognized as precedent unless there is no other opinion to be relied upon. And courts issue far more per curiam opinions than they do signed, published opinions. Per curiam opinions are not precedent even for the courts that issue them – not published, not precedent.

American courts do not generally consider the laws and decisions of the courts of other countries to be precedent for American decisions, unless there is no American decision that can be relied upon, or the issue is one that includes the laws of another country. Those cases do arise. But it is is no way a repudiation of the sovereignty of American law to rely on the law of a foreign country when it applies to the situation before the American court. What would the radical right have courts do in those instances where the laws of other countries come into play in a case in this one? Or in those instances where there is no American law on the issue but there is well-settled law from other countries where the issue has arisen, and it is in line with otherwise established American jurisprudence?
Does the radical right really believe that our system of jurisprudence sprang full blown and unique from the foreheads of the founding fathers? Our legal system is based squarely on British jurisprudence. British jurisprudence is based upon European jurisprudence. How in the world can it possibly be considered problematic for judges to look to international precedent when that is where our legal system originated?
This is a major bee up the radical right’s collective ass. I’ve heard it from wingnuts personally – activist judges using precedent from other countries – how dare they? Well, until the United States of America has its own planet, this nation will be a nation among others. If the courts of another country have solved a problem for which our courts have no solution, can someone please tell me what the hell is so wrong with adapting their good ideas to our system? I can promise you that no American court ever considers precedent from another country over precedent from this one. Don’t believe me? Get your own fucking copy of the Harvard Blue Book and look at the hierarchy of precedent for yourself. It isn’t a secret, folks.