A Response to Justice Scalia

Pace Law School hosted the Blaine Sloan Lecture on International Law on Monday, October 4. This year's speaker was the Honorable Michael Kirby, formerly a justice of the High Court of Australia; when he stepped down from the bench in 2009, he was Australia's longest serving justice. More information about Justice Kirby is available here. In addition to Justice Kirby's biography, you will also find a link to a video of the lecture. I thoroughly enjoyed his remarks. In a genial and eloquent manner, he put forth the rationale for judges to review how the courts of foreign countries have looked at the issues that have come before them as a way of informing their own decision-making process; this approach is rejected by Justice Antonin Scalia and the other conservative members of the United States Supreme Court. Justices Scalia and Stephen Breyer have debated the controversial issue of original intent. To hear their debate at the Supreme Court Historical Society, click here.

According to Justice Kirby, the United States created the international system that has existed ever since World War II. In every area of human endeavor except one--the law--the United States is an outward-looking nation and seeks input from other countries. It would be inconceivable for American scientists, physicians, engineers, artists, and writers to cut themselves off from foreign influences, but that is precisely what American judges like Justice Scalia do when they refuse to recognize that foreign judicial decisions might inform their deliberations. This is particularly true when construing an international treaty to which the United States is a party, but is also true when deciding a case involving the United States Constitution. Justice Kirby recognizes that the decisions of other courts would never bind the United States Supreme Court, but they might provide useful insights, especially when they come from other common-law systems. Justice Kirby believes that our Constitution should not remain frozen in the times during which it was written, but can apply to modern situations that its Framers could not possibly have imagined. Justice Kirby's speech is well worth listening to.