The New York Times
January 13, 2005

Justices Debate International Law on TV

By THE ASSOCIATED PRESS
 

 

Filed at 8:41 p.m. ET

WASHINGTON (AP) -- Justice Antonin Scalia on Thursday chastised the ``arrogance'' of U.S. judges who seek to decide politically charged questions involving gay rights and the death penalty by citing international law.

The conservative judge sparred with Justice Stephen G. Breyer in a rare televised debate at American University on the role of foreign judgments in deciding Supreme Court cases.

Scalia bemoaned a recent trend on the high court in citing international opinion to support decisions interpreting the U.S. Constitution, including those decriminalizing gay sex and banning the execution of the mentally retarded.

``What you're looking for are the standards of decency of American society,'' Scalia said. ``What does an opinion of a wise Zimbabwe judge have to do with what Americans believe?

``Doesn't it seem arrogant to think I can decide moral views for penology, death penalty and abortion?'' he said, arguing that elected legislatures should make those decisions.

Breyer responded that international opinion can be relevant in determining fundamental freedoms in a more global society.

``U.S. law is not handed down from on high even at the U.S. Supreme Court,'' he said. ``The law emerges from a conversation with judges, lawyers, professors and law students. ... It's what I call opening your eyes as to what's going on elsewhere.''

The debate foreshadows a divide on the court over the constitutionality of executing juvenile killers, a ruling that could come as early next week. Four justices, including Breyer, have announced their willingness to strike it down, based in part on the overwhelming international sentiment against it.

But Scalia and Chief Justice William H. Rehnquist and Clarence Thomas, both fellow conservatives, have derided the relevance. If justices believe foreign judgments are decisive on these moral cases, they should ban abortion since most other countries do so, Scalia said.

The event, which was broadcast live on C-SPAN, provided a rare televised look at the justices. Cameras are banned at the Supreme Court, and Scalia, who is no fan of the media, typically bars TV coverage and tape-recording of his public speeches.