from Sandy Schulz
Lost in the hoopla over the Supreme Court's decisions last term on affirmative action and gay rights is the development of a disturbing new legal trend, one hinted at by Justice Sandra Day O'Connor in a speech last week.
Increasingly, it seems, the Court is relying on international law and opinion as the basis for domestic legal decisions. For an institution that puts so much stock in precedence, this move is, well, unprecedented. Worse, it spells potential trouble down the road.
In several of its highest-profile cases, the Court looked for guidance from, among other bodies, the European Council for Human Rights and the United Nations. For the first time, these authorities are being granted as much or more weight as American laws, or even the Constitution, in the Court's decisions. This represents a serious abuse of the Supreme Court's judicial review responsibility, as well as its role as the ultimate arbiter in our legal system.
The article goes on:
There is a big difference between being open to new ideas and perspectives -- a necessary qualification for any jurist -- and a willingness to disregard established American law in order to impose those ideas on the public.
Not that I necessarily disagree with the outcomes of some of these decisions; there's no good justification for sodomy laws, after all, and a case arguably can be made for limited affirmative action. Moreover, it's perfectly legitimate for international opinion to inform the laws Congress and the state legislatures pass.
The question is how society arrives at those decisions. Shouldn't they come about through our established democratic process, with elected legislators answerable to the public making laws which are subject to a Constitutional scrubbing?
The problem comes when justices answerable to no one decide they don't like those laws -- not because they offend the Constitution, or because they conflict with other laws, but because they offend the justices' own personal sensibilities (or those of our European cousins). Then they decree solutions they think preferable.
That's problematic enough. What makes this latest trend worse is that, by citing international law as judicial precedent, the Court is hinting that our laws and Constitution may no longer be the supreme law of the land.
Disturbing trend...
