Ginsburg Defends US Supreme Court References to Foreign Court Decisions

The following quotations are from a speech delivered by Justice Ruth Bader Ginsburg last week to the American Society of International Law. The Mobile Register criticized Ginsberg's remarks on today's editorial page.

If U. S. experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so we can learn from others now engaged in measuring ordinary laws and executive actions against charters securing basic rights...

...while U. S. jurisprudence has evolved over the course of two centuries of constitutional adjudication, we are not so wise that we have nothing to learn from other democratic legal systems newer to judicial review for constitutionality...

We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of "common denominators of basic fairness governing relationships between the governors and the governed." ...

Israel's Chief Justice, Aharon Barak, had it right, I think, when he listed among questions on which comparative law inquiry could prove enlightening or valuable in a positive or negative sense: hate speech, privacy, abortion, the death penalty, and now the fight against terrorism...

The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a close kinship to the view of the U. S. Constitution as a document essentially frozen in time as of the date of its ratification. I am not a partisan of that view. U. S. jurists honor the Framers' intent "to create a more perfect Union," I believe, if they read our Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings...

Term limits for Supreme Court justices are sounding a little better.