A Judicial Duh?

Jed S. Rakoff’s review of U.S. Supreme Court Justice Stephen Breyer’s new book, The Court and the World: American Law and the New Global Realities, (full disclosure: I haven’t read it) seems to me to be something of a settled argument if looked at from a naive’s perspective. In the piece, he discusses Justice Breyer’s support of reflecting upon foreign law in judicial thinking. As far as I can tell, he doesn’t argue foreign law should be used as the basis for decisions or cited as formal precedent, but that foreign law does have some influence on the determinations of the Court. Like all politics, and religion. This seems like one big duh.

Justice Scalia, a radical opponent of this view, of course, could no more be expected to not allow his Catholic faith to influence his decisions. The views and evolutions and devolution of the world outside their chambers intrudes.

At the end of the article, Rakoff writes,

I am not as certain as Justice Breyer that the increase in international interdependence makes more judicial involvement with international law inevitable. . . . [T]here is still room to retreat into judicial isolationism. But I do agree with Justice Breyer that this would be a tragic mistake. In this interconnected world, to forgo the opportunity to help guide the development of interactive law among nations, and to be guided by it, would be to miss a valuable opportunity to advance the rule of law.

So, the author essentially disagrees with two words: “certain” and “inevitable.” I’d say it’s already certain. The influences are there. Recognized or not.

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