Foreign Law: Coming Soon to a Supreme Court Near You

This article is part three of a series on Supreme Court nominee Elena Kagan. Read part one (“Elena Kagan and Social Issues”) and part two (“Kagan’s Heroes”).

If Elena Kagan is confirmed to the Supreme Court, America may experience the best jurisprudence Eurosocialist legal scholars ever crafted.

This point was driven home by the Supreme Court’s decision last Monday in Graham v. Florida, which cited foreign law to strike down sentencing guidelines used by 37 states, the District of Columbia, and the federal government. Justice Kennedy wrote the majority opinion joined by Ginsburg, Stevens, Breyer, and Sotomayor.

As her record proves, Elena Kagan would accelerate the trend of using foreign law to interpret the U.S. Constitution.

As dean of Harvard Law School, Kagan instituted “the most comprehensive changes since HLS initiated the standard law school curriculum more than 100 years ago.” She introduced a new requirement that all first year students must “take one of three specially crafted courses introducing global legal systems and concerns – Public International Law, International Economic Law, and Comparative Law.” The school’s website explains each of these “represents a door into the global sphere that students will use as context for U.S. law.” Its course “on comparative law, will introduce students to one or more legal systems outside our own [and] to the borrowing and transmission of legal ideas across borders.” (Emphasis added.) In 2008, she told the New Hampshire Supreme Court Society that “a transnational perspective” was “foundational,” a “part of the core of legal thought and activity in this new century.” (Read or listen to the speech.)

Kagan legitimized the process as Solicitor General. In her confirmation hearings, she told Sen. Arlen Specter, then a Republican, she would “offer reasonable foreign arguments” before the arbiters of the Constitution.

By advancing this international “borrowing,” she is practicing the judicial activism she soaked up from her mentors and legal heroes. While she clerked for Thurgood Marshall, he joined the majority opinion in Thompson v. Oklahoma. That case overturned the death sentence of a 15-year-old, noting such a penalty is outlawed “by the leading members of the Western European community.”

The man she called “my judicial hero,” former Israeli Supreme Court justice Aharon Barak, regularly cited international law. In his book The Judge in a Democracy, he instructed, “Comparative law awakens judges to the potential latent in their own legal systems” – that is, how their own judicial system might be transformed. Kagan echoed this in the aforementioned 2008 speech, crediting Harvard’s comparative law course with “opening up new questions and possibilities.” Barak wrote that judges should consult international opinion “even if it is clear that the legislature was not inspired by foreign law,” because “comparative constitutional law is a good source of expanded horizons and cross-fertilization of ideas across legal systems.”

Americans should ask whether they want the work of Washington, Madison, and Hamilton “fertilized” by nations that now arrest and prosecute Christians for citing Bible passages opposing homosexuality.

The Obama administration already has its share of officials eager to replace our Constitution with international judicial activism. Obama named Kagan’s former counterpart at Yale Law School, Harold Koh, his legal adviser. Koh has long praised “transnationalist jurisprudence.” Kagan recruited Cass Sunstein to Harvard and called him “the preeminent legal scholar of our time” before Obama named him regulatory czar. Sunstein’s ominous-sounding book A Constitution of Many Minds: Why the Founding Document Doesn’t Mean What it Meant Before supports “constitutional cosmopolitanism.”

More troubling than the legal minds Kagan admires are those she may join on the Supreme Court.

Justices Kennedy, Ginsburg, Breyer, Stevens, and Sotomayor have cherry-picked the legal decisions of other nations when it supported their desired outcomes. To oppose the death penalty, Breyer cited the laws of Jamaica and India. In 2003, the Supreme Court cited European law in Lawrence v. Texas, the ruling striking down a Texas same-sex sodomy law. Two years later, Roper v. Simmons overturned a 1989 Supreme Court decision – a position taken just 16 years earlier – allowing states to sentence some minors to death.

Former justices David Souter and Sandra Day O’Connor engaged in this undermining of American jurisprudence, the latter calling it “vital if judges are to faithfully discharge their duties.” O’Connor hoped citing other nations’ standards would curry favor with foreign judges and “create that all-important good impression.”

Justices Scalia, Thomas, Roberts, and Alito adhere to a more traditional understanding of the law. Scalia has stated “foreign legal materials can never be relevant to the interpretation of, to the meaning of the United States Constitution.” Yet he warily admits, “the use of foreign law in our constitutional decisions is the wave of the future.”

Ruth Bader Ginsburg agrees, telling the Constitutional Court of South Africa that opposition to citing foreign law is “a passing phase,” and arguments to the contrary only “fuel the irrational fringe.” (She went on to favorably mention the work of Aharon Barak.)

Ginsburg has been proven right by the other Barack’s Supreme Court nominees. Last April, Sonia Sotomayor told the Puerto Rican chapter of the ACLU that the robed aristocracy read foreign opinions, because they “set our creative juices flowing.” The “wise Latina” appeared not to notice that creativity was not a virtue the Founding Fathers sought in a justice. They believed in binding tyrants down with “the chains of the Constitution.” They did not foresee justices ferreting out emanations of penumbrae in a “living document,” much less tossing out the standards of justice embraced by the vast majority of states in favor of the morality of their counterparts in the Old World.

Sotomayor, Ginsburg, and other defenders of the internationalizing of American law accuse their opponents of spreading “confusion” about their position. They insist they are merely “considering” foreign decisions, which are not “binding precedent.” European judges’ decisions are not, in Ginsburg’s words, “controlling authorities.” Citing them just shows the world “comity and a spirit of humility.”

Of course, this is condescending nonsense.

Once enshrined in a Supreme Court decision, foreign law becomes binding precedent. Kennedy proved this last Monday when he struck down a previously binding Supreme Court precedent by citing foreign law – and his own decision in Roper. Just one decision and – voila! – foreign jurisprudence becomes as American as apple pie.

The American people deserve to be consulted on whether they wish to supplant the United States Constitution with the legal norms and doctrines of France, Sweden, and the Netherlands, or – after the next “diversity” barrier is crossed – Iran, Saudi Arabia, and Afghanistan. The GOP owes it to them to make Elena Kagan’s confirmation hearings that referendum.

Ben Johnson is the author of Party of Defeat (2008, Spence Publishing, with David Horowitz), as well as two books on Teresa Heinz Kerry’s funding of radical causes. Visit his personal website.

This article is part three of a series on Supreme Court nominee Elena Kagan. Read part one (“Elena Kagan and Social Issues”) and part two (“Kagan’s Heroes”).

This article originally appeared as the lead feature on Monday, May 24, 2010, on the website of, a Christian news service.