Wake Up, Ruth
There is a fairly long article in today's Washington Post in which she takes shots at the GOP for wanting to limit the Court's use of foreign law in it's decisions. She's also angry that some wacko's put up some threatening posts on the web towards her and Sandra Day O'Connor over the issue.
On the subject of wacko's, I'm not an advocate of knocking off judges. I think the person (or persons) who would advocate such nonsense should be punished to the extent that (US) law allows.
I would say that she may live in a closet, though. Maybe she never watches the news or cruises blogs, she'd see how often these same types of statements are made about presidents. It happened all the time when Clinton was in office, and still does, maybe more often, with Bush.
The real subject of this though is Article III of the US Constitution, and specifically, the "Original Jurisdiction" clause, that states where the Courts in the US get their power, and what it is (provided by www.usconstituion.net)
(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section was modified by Amendment XI. Bold is my emphasis)
Justice Ginsburg is upset that some Republicans want to pass legislation barring courts from citing foreign law in their decisions.
Her reasoning for the use of such citations is thin, at best, and ignores Article III, at worst. In her speech to a South African audience she gave this purpose for such uses of foreign law:
The Supreme Court's citation of them shows "comity and a spirit of humility" toward other countries, she said.Great, Madam Justice, now go back and read Article III. Your job, according to it, is to make sure that our laws are okay under our Constitution, not if they show a spirit of humility towards another countries law.
When conservatives speak of judicial activism this is the type of issue they are referring to. When judges decide that even though something isn't in the law (our law), maybe it should be, and write a decision in such a way that puts it there.
Three cases brought this to a head, Terri Schaivo, the Juvenile Death Penalty (Roper v. Simmons), and the Texas Sodomy Law (Lawrence and Garner v. Texas). In the Schaivo case, the problem wasn't that foreign law was used, but because the court (rightfully, in my opinion) spanked Congress for meddling where it shouldn't.
The other two cases, though the justices cited foreign law, and the UN in the majority decisions. While it sounds good in a majority opinion, references to British law and UN Conventions are not, by the definition of their job, what they are to be using for writing opinions.
On a side note to this issue, folks who are happy with these decisions might wish to read the dissents. Some very good points are made by Justices Scalia and Thomas on the very evident ignoring (actually, shredding would be a better phrase) of "Stare decisis" by the majority in both opinions. (findlaw.com is a great place to look).
In his Roper dissent Scalia notes that a number of his colleagues who insisted on the importance of that theory in the Casey v. Planned Parenthood decision tossed it out the window for their Roper case opinion.
Now, Justice Ginsburg doesn't find those decisions disturbing, she calls them "judicially independent" decisions. But the only thing they are independent of is her constitutional duty.
Maybe she should re-read her oath (again, the bold is my emphasis):
Just a thought.
"I, Ruth Bader Ginsburg, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Supreme Court Justice under the Constitution and laws of the United States. So help me God.''
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