Foreign Precedents

During his confirmation hearing, John Roberts made a strong case against their use in Constitutional cases:

If we're relying on a decision from 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. And yet he's playing a role in shaping the law that binds the people in this country. I think that's a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, 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. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution. And I think that's a misuse of precedent, not a correct use of precedent.

Ann Althouse addresses this:

I think the defense of using foreign law is that you cite it for its persuasive power, not because you regard it as binding authority. So it's not different from quoting a passage from Shakespeare or a philosopher. Thus, the fact that you're "picking out your friends" isn't a problem... It's not as if judges rigidly follow a method of eliminating all extraneous material from their opinions. As long as they don't slip into the problem of imagining the opinions of foreign courts to be authoritative, why is it wrong?

And it is not unlike a state court drawing on precedents laid down in another part of the country, despite Roberts' suggestion to the contrary. There are many independent jurisdictions in this country, and judges could often cherry-pick precedents favorable to their opinions. One of the benefits of a legal system with independent jurisdictions, free to some extent to develop their own precedents, is the freedom of states to experiment with new rules. Until such rules prove themselves successful, their effects are contained.

Of course, many unsuccessful laws will be adopted elsewhere by misguided judges. Yet, those misguided judges could very well have created the same laws out of thin air. That's really what this is all about. To the extent that you are hostile to "legislation from the bench", you're likely to be hostile to any judicial approach that does not draw solely upon authoritative sources of law.