WASHINGTON – Adding a new dimension to an old debate, Justice Antonin Scalia said Thursday that Congress should stay out of the battle among the Supreme Court justices over the use of foreign law in interpreting the U.S. Constitution.
"As much as I think that it is improper to use foreign law to determine the meaning of the Constitution, I don't think it's any of your business," Scalia told an audience at a House of Representatives office building that included about a dozen members of Congress.
"Let us make our mistakes just as we let you make yours," the blunt-spoken justice said to laughter. He noted that legislation has been introduced in the past directing the court not to use foreign law.
"If you can tell us not to use foreign laws, you can tell us not to use certain principles of logic," said Scalia. He said his comments also apply to the reverse, saying the court should not use its decisions to tell Congress how to do its work.
Firing the latest round in a sometimes heated dialogue with his colleagues on the court, Scalia said, "I do believe that there's a moral law ..., but I don't believe that judges have been charged with deciding it."
Scalia has criticized the use of foreign law in a decision that struck down a Texas statute that had made sex between homosexuals a crime. He strongly dissented in the ruling.
In a 2005 ruling in which Scalia also was in the minority, justices outlawed the death penalty for juvenile killers, citing in part international sentiment against the practice.
Judges around the world have come to believe they are charged with deciding "the most profound moral questions," Scalia said. "Should there be the death penalty? Should there be a right to abortion? Should homosexual conduct be proscribed?"
"If you believe that, of course you are going to cite the Court of Human Rights in Strasbourg, because those guys wear robes just as you do," said Scalia. "And therefore they also have been charged with determining the most profound moral questions of mankind."
Seated in the luncheon crowd as he spoke was Samuel Alito, the court's newest justice, along with the members of Congress.
When depending too heavily on foreign law, Scalia asked rhetorically, what authority can be cited when a court says constitutional law that "used to say one thing now says something else?"
"You have to make noises like a lawyer, right?" Scalia said. "Here's an opinion of a foreign court. It looks like a real legal opinion, so and so versus so and so, 33 Uganda 251." He said that "one of the worst aspects of using foreign law for deciding our constitutional questions is that it is so manipulable."
Scalia appears to have gotten some recent support for his views. At his confirmation hearing, Chief Justice John Roberts said he was opposed to the use of foreign law in rendering U.S. court decisions.
The issue of foreign law has become an increasingly high-profile issue for the Supreme Court.
Justice Steven Breyer has said it is appropriate in some instances to look at the law in other places. Justice John Paul Stevens has said allowing U.S. courts to consider the views of international jurists while making a decision is a responsible practice. Before his death, Chief Justice William H. Rehnquist weighed in against the use of foreign law, and Justice Clarence Thomas has done so as well.
Before her retirement, Justice Sandra Day O'Connor dismissed growing criticism about the Supreme Court's use of international law in its opinions, saying it makes sense for justices to look at foreign sources when a point of law is unclear.
Scalia's remarks came at a public policy forum of the National Italian American Foundation.