Ginsburg Doesn’t Understand ‘Brouhaha’ About Foreign Law References

Justice Ruth Bader Ginsburg says she is baffled by the controversy surrounding some justices’ reference to foreign law in their U.S. Supreme Court decisions.

“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Ginsburg said. She spoke at a symposium on her jurisprudence at the Moritz College of Law at Ohio State University, according to stories in the New York Times and the Washington Post.

The Supreme Court has cited foreign law in decisions striking down a law barring homosexual sodomy and in restricting the reach of the death penalty. The controversy at one time spurred a move in Congress, since abandoned, to bar the practice, according to the Post.

Ginsburg said there could be a misunderstanding about the use of foreign law. Decision of other courts may be instructive, but they are not used as precedent, she said. "Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article from a professor?" she asked. She suggested that hostility to foreign law references “is a passing phase.”

The Post says Ginsburg stuck to familiar themes in her appearance. “On stage for a question-and-answer session conducted by friendly law professors, Ginsburg was a tiny figure in black with bold jewelry and a luxurious stole,” the Post reports. “She moved slowly, but her voice was strong and her words precise. She made no mention, as she had in Boston, that an opening on the court could come ‘soon.’ Nor did she talk about her own plans, which she has indicated in the past include at least another five years on the court.”

In a videotaped tribute, Chief Justice John G. Roberts Jr. offered "warm congratulations on the occasion of your reaching the midpoint of your tenure" on the court.