Justices Scalia & Breyer Discussion on Foreign Courts' Impact (01/13/2005)

[paineinthearse]

Justices Scalia & Breyer Discussion on Foreign Courts' Impact
Supreme Court Justices Antonin Scalia and Stephen Breyer discuss "Whether Foreign Court Decisions Should Impact American Constitution Law." The event is co-sponsored by American University Washington College of Law and the U.S. Association of Constitutional Law. The moderator is Professor Norman Dorsen of the NYU School of Law, the founding president of the U.S. Association of Constitutional Law.
1/13/2005: WASHINGTON, DC: 1 hr. 40 min.

CSPAN video clip, takes a while to load.

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Go to www.cspan.org, then look for link on home page. If not there, click on "archives" and scroll (sequentially) to 1/13.

[kodi]

1. watched it last week scalia hadn't done his homework, breyer ate him up

but it was an effective display of a man in scalia whose dogmatic attitude is unencumbered by mere facts

[Leilani]

2. I watched it last week also

& I had a different reaction.

I thought Scalia had Breyer for lunch.

Scalia had the Constitution on his side; Breyer had his thoughts, impressions, etc.

[kodi]

3. on using foreign jurisprudence as a guide for american was breyer's

scalia's attempt to equate the jurisprudence of non-western, non-industrialised nations with western ones was appalling.

his perspective was a ploy. if one argues against using nigerian or malasian jurisprudence as a guidence when no american law is avalable one is open to the accusation of racism.

but that is hardly the point, what is important to recognize and understand is the value system of the culture from which the form of jurisprudence arises and how it correlates to american culture.

scalia skirted that issue like a vampire avoids sunlight.

scalia is not interested in following the law wherever it leads. instead he has staked out a destination and contorts the law to get there.

he is in radical not seen on the court since douglas.

[trezic]

4. ?

The only foreign systems that American courts ever seem to cite are those of common law heritage (Britain, Australia, etc). Considering that the c/l system was the only one to restrain the supremacy of the legislature, this is hard to attack.

Racist for not using Malaysian or Nigerian law? You're making a deadly assumption here: that their statutory and case law is actually accessible. West doesn't necessarily publish everywhere.

As for Scalia...

I have no idea whether you've ever read Scalia. My instinct is to say no because of your comment that he doesn't follow the law where it leads. Scalia is the clearest, most logical writer on the court today. When dissenting, he has a tendency to get shrill and start a Chicken Little act, especially in Lawrence, but compared to some others, can we say Ginsberg and O'Connor, Scalia is joy to read in terms of understanding.

[kodi]

5. hardly so.

scalia arrives at a decision based upon his ideology not the law. he works backward and finds in the law tid bits and shards to hang his decision upon after the fact. and yes i have read scalia.

btw "Racist for not using Malaysian or Nigerian law? You're making a deadly assumption here: that their statutory and case law is actually accessible. West doesn't necessarily publish everywhere."

what scalia did was question why breyer would accept western, european law decisions for insight to forming american law and not the aformentioned or otherwise third world court decisions. this was in reference to the death penalty, where no western nations but the US uses it. essentially he was accusing breyer and the liberals on the court of cherry picking foreign law to buttress their liberalism in US court decisions. what he failed to mention was that the laws cited by the liberals came from nations most akin in culture to the US and that using such as a basis for their own opinions correlated better than laws based upon non-western societies.

with no definitive american precedence, the liberals on the court reached out for foreign court opinions as a starting point to form their own opinions. they chose western and european court decisions, ones that supported their view that the dealth penalty was cruel or unusual. scalia wanted to know why they would chose only those courts/countries that supported the liberal position on the death penalty and not court decisions from non-western nations, and actually your quoted remark would be sufficient response to scalia's red herring.

i find your remark absurd that Scalia is the clearest, most logical writer on the court today.

he is not, he is a sophist and a judge who searches the archives to support predisposed positions based entirely upon personal opinion, not the law. he is an activist judge in that regard, more activist than anyone since douglas. his work in the 12/12/00 bush v gore decision would show that in all its glory.

[trezic]

6. Hmm

I'm not aware of a justice, ever, whose personal views didn't come into play when decisions are made. There's a difference between the opinions of a justice and public remarks.

Read Lawrence and Gasperini for examples of how clear and logical a writer Scalia is. Few on here agree with his dissent in Lawrence, but he lays out a strong case. Too bad for him that Kennedy's was stronger.

Scalia is a textualist. Textualists prefer to use the actual language of a statute to divine the law. This approach is necessarily more deferential than others to the idea of legislative supremacy. As such, he tends to be resistant to overturning statutes without an overwhelming reason.

I personally don't see the point of citing any European legal system except Britain. Continental systems tend to be less focused on the individual, and more on the state. Britain's approach is more state-centered than ours, but we do share the same precedential approach.

If you're going to attack Scalia as one 'who searches the archives to support predisposed positions,' you might as well extend that charge to every justice to ever serve. It's easily extendable to Breyer, who goes searching for overseas evidence because of the lack here at home.

As for Bush v. Gore, when is this dog going to finally die? While I felt that the Court should have stayed out due to state preeminence when it comes to running elections, look on the bright side: it was an implicit blow against the doctine of states' rights.