Scalia to Congress: Butt Out of Court’s Use of Foreign Law

Times Staff Writer

Justice Antonin Scalia said Thursday he was strongly opposed to using foreign law to decide constitutional cases in the Supreme Court but also was opposed to having Congress outlaw the practice.

“I don’t think it’s any of your business.... Let us make our mistakes, just as we let you make yours,” he told a luncheon audience that included several members of Congress at a public policy forum on Capitol Hill.

Scalia is a conservative and a believer in the independence of the courts.

His oft-stated skepticism about the role of foreign laws has been taken up by a group of House Republicans, who introduced a measure saying legal decisions interpreting the Constitution “should not be based on judgments, law or pronouncements of foreign institutions.”


Scalia said Thursday he did not welcome the intervention. He told the lawmakers that he did not think the justices should second-guess how Congress makes it decisions. The same applies in reverse, he added.

“No one is more opposed to using foreign law than I am, but I’m darned if I think it’s up to Congress to direct the Supreme Court how to make its decisions,” he said.

Scalia, the first Italian American to sit on the high court, was speaking before an appreciative audience: the National Italian American Foundation. It gathered in the Gold Room of the Rayburn House Office Building.

It was a tame performance for Scalia.

A former law professor and one of the court’s leading intellects, he travels widely and speaks regularly on the law. Sometimes his appearances gain attention less for his considered legal views than for his combative off-the-cuff comments and gestures.

In February, he said only “idiots” would believe the Constitution must change with society. Several of his colleagues are on record as saying the Constitution should indeed change with society.

In March, he said it was “crazy” to believe foreigners captured in a war are entitled to a full jury trial.

That was a couple of weeks before the Supreme Court took up such a case.


Also in March, he set off a minor flap in Boston when he was caught on camera giving a dismissive -- some said vulgar -- fingers-under-the-chin gesture to a reporter who asked him a question as he left church.

“That’s Sicilian,” he explained.

On Thursday, Scalia stuck to a familiar legal topic, albeit one that has divided the high court and much of the nation’s legal community.

The issue is whether the justices should consider the opinions of foreign courts in deciding cases under the U.S. Constitution.


The question has been caught up in the culture wars over gays, abortion, religion and the death penalty.

In recent years, four of Scalia’s colleagues -- Justices Ruth Bader Ginsburg, John Paul Stevens, Stephen G. Breyer and Anthony M. Kennedy -- have given speeches saying the opinions of foreign courts should influence U.S. legal thinking though outside views are not decisive.

Three years ago, when the Supreme Court struck down as unconstitutional a Texas law that made private sex between gay adults a crime, the majority noted in passing that the European Court of Human Rights had come to a similar conclusion two decades earlier.

Two years ago, the court struck down state laws that permitted the death penalty for murderers younger than 18. Kennedy noted that the United States stood nearly alone in condemning juvenile killers to death.


Scalia dissented sharply in both cases, faulting the majority for following the view of “like-minded foreigners” and repeating his view that the Constitution “means just what it meant when it was adopted.”

“I’m not some yahoo, a hater of all things foreign,” Scalia said Thursday.

“I’m a friend of foreign law” in cases involving treaties or trade compacts between nations, he said, “but not when it comes to determining the meaning of the U.S. Constitution.”

The newest justice -- and fellow Italian American Samuel A. Alito Jr. -- came to hear Scalia on Thursday. Alito told senators earlier this year that he opposed relying on foreign court rulings in the Supreme Court.


Last year, Ginsburg said U.S. judges should “learn what we can from the experience and good thinking [that] foreign sources may convey.”

The opposition to foreign opinions “has a certain kinship to the view that the U.S. Constitution is a document essentially frozen in time as of the date of its ratification,” Ginsburg added in an obvious dig at Scalia.