What Would Elena Do?

, Emily Jaroma, Leave a comment

The debate regarding whether international law should play a contributing role in deciding Supreme Court cases has sparked national interest and concern.  This is due to the fact that there has been a recent tendency by Supreme Court Justices to refer to or cite international law when dealing with a domestic court case.  This leads many to ask, What is Elena Kagan’s view on the role of international law in domestic cases?

The very fact that President Obama appointed Kagan to serve on the Supreme Court does provide some information on her views regarding the use of international law, argued Carrie Severino, Chief Council and Policy Director of the Judicial Crisis Network said on June 23, 2010 at the Heritage Foundation.  “She is serving for a President who has made reaching out internationally, even campaigning abroad, part of his important platform.”

“Can we delegate the constitutional authority of the United States to international organs?” said George Mason University Professor of Law Prof. Jeremy Rabkin at the same Heritage event.  Looking over to the European Union, he argued, is a good example of what it would be like.  “The Euopean Union is fundamentally a meeting of ministers of national governments and then they issue these general standards,” he argued.  “These things go directly to national law and they are bound to obey… Can we do this?”

When the Supreme Court invokes foreign precedents in their decisions, these are treaties that we never ratified, Rabkin argued.  These federal judges determine the law of nations without a treaty.  Rabkin explained, “This is giving a lot of power to federal judges because they can pick and choose which international practices they want.”

According to Professor Rabkin, Justice Sandra Day O’Connor at an event sponsored by the American Society of Judicial Law explained why she believes citing international law is important.  Justice O’Connor said, “It makes that all important good impression on other countries to cite what they do to show them that we care about their opinions.”

“What is most disturbing is that it implies that the world at large is somehow a political forum,”  Rabkin said.  “Does the Supreme Court think that its job is to be a counter-balance to make it up to the world to show that we embrace world standards? I think the logic of that is disturbing.”

“The evidence we have is very troubling about Elena Kagan.”

Emily Jaroma is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.