Ruth's Wake-Up Call

From IBD:
Posted 3/23/2006

Law: When Ruth Bader Ginsburg isn't dozing off, she's telling South Africans that U.S. courts should base decisions on foreign precedent. Well, Canada has a mandatory retirement age for its judges. Maybe we should too.

During recent oral arguments over political redistricting in Texas, Supreme Court Justice Ginsburg, according to The Associated Press, took a nap. "The subject matter was extremely technical," AP reported, "and near the end the argument Justice Ruth Bader Ginsburg dozed in her chair." By Bloomberg News' reckoning, the snooze lasted a quarter of an hour.

Sometimes legal arguments can be dry and esoteric. But perhaps the reason Ginsberg didn't find this debate over the redrawing of U.S. congressional district lines exciting was the absence of foreign precedent to draw upon.

In a speech last month at the Constitutional Court of South Africa, Ginsburg argued that if judges can consult law review articles and such in the U.S., then "why not the analysis of a question similar to the one we confront contained in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court or the European Court of Human Rights?"

Well, John Roberts had an answer to that when he was asked during his chief justice confirmation hearing about the proper role of foreign law in U.S. Supreme Court decisions. From his comments, it was clear that he, unlike Ginsburg, understands that "We the people" means we the people.

"If we're relying on a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge," Roberts said. "And yet, he's playing a role in shaping the law that binds the people of this country."

Roberts also noted that foreign legal rulings are not bound by domestic legal precedent, and that "you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever."

We wonder how Americans feel having their rights determined by the opinion of a Somali court. For that matter, what would Ginsburg think if a federal judge used a ruling from a Taliban court in a case involving women's rights?

In her South African speech, Ginsburg said the March 2005 Roper v. Simmons decision, in which a 5-4 majority ruled against executing murderers who were 17 or younger at the time the crime was committed, was "perhaps the fullest expression to date on the propriety and utility of looking to the 'opinions of (human)kind.' "

Forget the opinion of the people of South Dakota or Georgia or Pennsylvania, as expressed through their elected legislators. Respect the opinions of "humankind" as expressed in foreign courts.

Ginsburg also offered the best definition of judicial activism we've ever heard when she said: "U.S. jurists honor the Framers' intent 'to create a more perfect union,' I believe, if they read the Constitution as belonging to a globalist 21st century, not as fixed forever by 18th century understandings."

Hey, what did Thomas Jefferson and Benjamin Franklin know anyway about the wisdom that can be found in a Somali court?

For our part, we think our Constitution and laws belong to the American people, to be changed through and by our elected legislatures. If Justice Ginsburg thinks otherwise, she should dream on.