Published September 11, 2003
WASHINGTON – Justices have started to cite foreign sources to justify the way they rule at home, oftentimes looking toward liberal courts no matter how preposterous the connection to the cases being heard at home, said retired Judge Robert Bork (search).
Bork, whose third book, Coercing Virtue: The Worldwide View of Judges, was released this week, said judicial activism has been growing and evolving in the United States since the 1960s, and is, in fact, going global.
In turn, that activism in courts abroad is influencing decisions among judges throughout the legal system at home.
The liberal elite, or “New Class,” (search) as he terms it, will stop at nothing to impose its moral and legal framework on the rest of society, and is using foreign courts, multinational treaties and international law to achieve it, he said.
“The internationalization of law, I think, is a most interesting and alarming topic,” Bork said. “It is farther along than you think.”
In his book, Bork details examples, including Supreme Court Justice Stephen Breyer's (search) references to the "useful decisions" by the Privy Council of Jamaica, the Supreme Court of India and the Supreme Court of Zimbabwe for a 1999 case involving allowable delays of executions.
In 1989, Justice William Brennan (search) cited the rejection of capital punishment “throughout the world” in his dissent in a case upholding the execution of man whose crime was committed when he was a minor.
“International law becomes one more weapon in our domestic culture war,” Bork said.
“I don’t see that as a problem at all,” said Anthony Arend (search), professor of law at Georgetown University, who added that the knowledge of legal precedent abroad helps judges making difficult decisions.
“I see them using [foreign law] to inform their judgment and broaden the context of how an issue is being played out,” Arend said.
“It is not as big of a problem as [Bork] states it,” but “it is certainly something to be careful about, and there’s no question among the left that there is a tendency to internationalize these issues,” said Roger Pilon (search), vice president of legal affairs at the Cato Institute (search).
Bork, a former U.S. solicitor general and U.S. Court of Appeals judge picked by President Reagan for the Supreme Court, saw his nomination defeated in 1987 by Democratic senators and special interests groups who lobbied heavily against him. The organized effort to send the judge packing led to his name being used as a verb to describe concerted attacks on judicial nominees.
In his first two tomes, The Tempting of America and Slouching Towards Gomorrah: Modern Liberalism and American Decline, Bork lays out his argument against judicial activism, which he describes as legislating from the bench on issues that would not pass muster at the ballot box, even when the decisions “cannot plausibly be connected to the law [justices are] citing.”
In Coercing Virtue, Bork writes that the New Class uses international laws and organizations —like the International Criminal Court or the European Convention for Protection of Human Rights and Fundamental Freedoms — to make their cases against U.S. policy at home and abroad.
The New Class is not limited to liberals in the United States. Bork cites criticism of the war in Iraq by members of the United Nations who argued the war violates international law and human rights codes as a perfect example of the internationalization of the New Class.
Arend said Bork clearly does not understand international diplomacy.
“Ninety percent of international law is non-controversial and really is the fabric on which international relations takes place,” he said. “My general view is we have agreed to a system of rules and norms that are there to promote predictability and regularity of behavior, and in my view they are in our best interest."
“Our State Department follows it, our military abroad follows it. It’s not necessarily interesting, it’s not controversial,” he said.
Arend added that even when the United States has been condemned by those who refer to international law, Congress is not bound by those rules and international law would never trump the Constitution."
But Bork said that misdirected constitutional interpretations, frequently impacted by foreign case studies, have real impact on the culture in America, resulting in the protection of everything from obscenity to abortion and the prohibition of everything from prayer in the classroom to all-male military academies.
“What judges have wrought is a coup d’etat – slow moving and genteel, but a coup d’etat nonetheless,” he writes in Coercing Virtue. “Courts inevitably assume the role of moral teachers.”
Derek E. Brown, a Washington attorney practicing constitutional law, said “people can view it as alarmism,” but he believes Bork is revealing a very real extension of the domestic culture war on a worldwide front.
“It’s a very legitimate view. It doesn’t matter what other countries are doing, what matters is what is established in our laws,” he said.
Bork said until the Senate is more densely populated with Republicans able to appoint judges who favor strict interpretations of the law and the Constitution, the trend toward global judicial activism will continue on its current trajectory.
“I don’t see any present prospect of stopping what is taking place,” he said.