Courting foreign opinion.

ITEM: Supreme Court Justice Sandra Day O'Connor "extolled the growing role of international law in U.S. courts, saying judges would be negligent if they disregarded its importance in a post-Sept. 11 world of heightened tensions," said a wire service account in the Boston Globe for October 28.

Continued the AP: "'International law is no longer a specialty.... It is vital if judges are to faithfully discharge their duties,' O'Connor told attendees at a ceremony dedicating Georgetown's new international law center...." The justice "said recognizing international law could foster more civilized societies in the United States and abroad. 'International law is a help in our search for a more peaceful world,' she said."

BETWEEN THE LINES: Justice O'Connor, who last year won the "World Justice Award" at the Southern Center for International Studies, is not the only member of the Supreme Court to search for and cite foreign precedents and opinions in legal decisions affecting Americans. Selectively extracting those overseas attitudes that reinforce their own beliefs--as well exercising their predilection to make laws, not judge their constitutionality--at least six justices have trotted the views of foreign tribunals into the U.S. judicial system.

A Supreme Court decision in 2003 overturned a Texas anti-sodomy law, buttressing its ruling with decisions made by European courts. This prompted O'Connor to remark: "I suspect that over time we will rely increasingly ... on international and foreign courts in examining domestic issues." Justice Kennedy justified his decision in the case, in part, because it conforms to progressive overseas attitudes; homosexual activity, he said, "has been accepted as an integral part of human freedom in many other countries."

As Professor John Yoo of the Boalt Hall School of Law at the University of California at Berkeley has asked: "What should we care what foreign countries think our Constitution means?" Refreshingly, Justice Scalia dissented in the above Texas case by asserting: "Constitutional entitlements do not spring into existence ... as the court seems to believe, because foreign nations decriminalize [homosexual] conduct." Scalia further elaborated on this issue when he told the American Society of International Law that citing foreign cases in U.S. constitutional opinions is "wrong" and perhaps unconstitutional.

In this regard, Scalia is in the minority on the high court. Justices Ginsburg and Breyer, upholding racial preferences at the University of Michigan Law School, even cited the UN Convention on the Elimination of All Forms of Discrimination Against Women, which the U.S. Senate has refused to ratify for almost a quarter of a century. Ginsburg boasted before a liberal legal group that the American "Lone Ranger mentality is beginning to change." Justice Kennedy confers with "judges" from Communist China. In a current death-penalty case, the Supreme Court is entertaining the opinions of Mikhail Gorbachev, accepting an amicus brief from the former Soviet dictator on how U.S. criminal law should be applied.

This is not constitutional jurisprudence; this is institutional suicide.