SECTION: NEWS; Pg. 3A

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HEADLINE: High court justices hold rare public debate

BYLINE: Joan Biskupic

DATELINE: WASHINGTON

WASHINGTON -- Shed of their black robes, Supreme Court Justices Antonin Scalia and Stephen Breyer engaged in a lively and, at times, amusing debate Thursday over whether foreign court rulings should be used in U.S. decisions.

"We don't have the same moral and legal framework as the rest of the world, and we never have," said Scalia, who is one of the strongest voices on the high court against looking to foreign rulings to decide American cases.

Breyer countered, "You can learn something" from foreign countries. He said it is a matter of "opening your eyes to things that are going on elsewhere." He said he does not consider foreign decisions "determinative" but "simply, from time to time, relevant."

Sitting in upholstered chairs in the well of an American University auditorium, the two justices laid out their views in a rare public session. Their conversation was moderated by New York University law professor Norman Dorsen and co-sponsored by the U.S. Association of Constitutional Law and American University.

Supreme Court justices increasingly have referred to foreign law but not without dissent in their own ranks or public controversy. In 2003, when the majority struck down state anti-sodomy laws, it mentioned that the European Court of Human Rights has affirmed the right of homosexual adults to engage in sexual conduct. A year earlier, when the majority barred the execution of mentally retarded convicts, it noted that "within the world community" such executions are "overwhelmingly disapproved."

Some members of Congress have denounced such references. Last year, Rep. Tom Feeney, R-Fla., introduced a resolution criticizing the court for citing foreign legal authority. The resolution drew several co-sponsors but was not adopted by the full House. Shannon Conklin, a spokeswoman for Feeney, said Thursday that he intends to reintroduce the resolution.

Scalia and Breyer, both former law professors, appeared to relish expounding on their competing approaches. "I'm not preventing you from reading these cases," Scalia said, "just don't put it in your opinions."

Scalia, who dissented from the gay rights and death penalty decisions, argued that the danger of foreign law is that it can be taken out of its native soil context or used only when it helps a position. "We are one of only six countries in the world that allows abortion on demand prior to viability," he said, noting that the Supreme Court majority has not been guided by that. "Do we just use foreign law selectively?"

Scalia, who was appointed in 1986 by President Reagan, emphasized that judges should decide cases based solely on the U.S. Constitution and its 18th-century context.

Breyer, who was named to the bench by President Clinton in 1994, argued that judges can draw guidance -- not hard rules -- from foreign sources. He observed that the Supreme Court increasingly is faced with international problems, from global antitrust disputes to terrorism. "Those are the cases we're getting. And that reflects the truth about the world."

There were many moments of levity between the two justices during the hour-and-a-half session that also was broadcast by C-SPAN.

Breyer quipped at one point that he usually goes about his life unrecognized. He said that the few times people have asked him if he was on the Supreme Court, they thought he was Justice David Souter.

Chimed in Scalia, "And he went along with it!"