A Contest of Legitimacy: The Supreme Court, Congress, and Foreign Law

Abstract

Before 2003, the Justices on the United States Supreme Court routinely, if infrequently, cited foreign or international jurisprudence in their written opinions. Neither the media, nor members of Congress paid much, if any attention to the practice. However, after the decisions in <italic>Lawrence v. Texas</italic> (2003) and <italic>Roper v. Simmons</italic> (2005), what was an uncontroversial citation practice became a hotly contested issue in Congress, the media, and among conservative political activists. This debate had an effect on the Justices. In <italic>Kennedy v. Louisiana</italic> (2008), Justice Kennedy refrained from citing case law from the Inter-American Commission of Human Rights even though they were discussed in the briefs and in oral arguments. In 2012, Justice Sotomayor authored a dissent in <italic>Blueford v. Arkansas</italic> that explicitly omitted an 1861 decision of the Queens Bench in England that was discussed in the Court's opinion in <italic>Arizona v. Washington</italic> (1978) and in the petitioner's brief while simultaneously citing the other cases contained in both documents, including several decisions from English courts issued before America's independence. In this dissertation, I explain how this uncontroversial citation practice became controversial. I analyze how <italic>The New York Times, The Washington Post, USA Today, The Wall Street Journal</italic> and <italic>The Washington Times</italic> covered the Court's use of foreign law. I examine the resolutions and legislation introduced by members of Congress and the questioning of Supreme Court nominees by members of the Senate Judiciary Committee about the use of foreign law. I discuss how the Justices of the United States Supreme Court are less likely to cite foreign law than other courts with constitutional review powers. The Justices are sensitive and respond to the reaction of external audiences (Baum 2006). The reaction of the Justices to this controversy indicates that the Justices care more about cases than just their disposition or particular policy agendas, and provides further evidence that the Justices take into account their relationships with other actors and audiences