Notice to ConLaw Geeks: Justices Scalia and Breyer to Debate

U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer will discuss "The Relevance of Foreign Law for American Constitutional Adjudication" at the American University's Washington College of Law tomorrow from 4:00 until 5:30 PM EST. The discussion will be carried live on C-SPAN, and should be available in the C-SPAN archives soon afterwards.

This should be an interesting debate. Breyer and Scalia have faced off on this issue before. The most recent example came in the Lawrence v. Texas decision, in which the Court overrode its decision in Bowers v. Hardwick, ruling Texas's sodomy law to be unconstitutional. In Lawrence, Breyer signed on with the majority opinion, which made a key point by referring to a decision of the European Court of Human Rights in a similar case. Justice Scalia excoriated the Court's decision in his dissent, reserving special scorn for the "discussion of foreign views" in its opinion.

This is Justice Scalia at his best:

...Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on “values we share with a wider civilization,” but rather rejected the claimed right to sodomy on the ground that such a right was not “ ‘deeply rooted in this Nation’s history and tradition,’ ” (emphasis added). Bowers’ rational-basis holding is likewise devoid of any reliance on the views of a “wider civilization”. The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court … should not impose foreign moods, fads, or fashions on Americans.” [quoting Foster v. Florida]

A no-holds-barred wrestling match might make for better TV, but given the Justices' traditions of decorum, this will be about as close as it gets.

(Acknowlegdment to the Volokh Conspiracy for spreading the word about the debate.)