Stalinist Quote of the Day

What is more important than being right? For the dangerous and disingenuous supreme Court judge Ruth Bader Ginsburg, the answer is: being quoted approvingly by foreign courts.

In a Saturday speech at Ohio State University, supreme Court Justice Ruth Bader Ginsburg demonstrated her lack of understanding about what is wrong with using foreign cases to help decide cases before the United States supreme Court.

“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law.” “Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?”

Remarking that the Supreme Court of Canada is quoted more widely by other foreign courts, Ginsburg said “You will not be listened to if you don’t listen to others.”

During her speech, Ginsburg also pointed out that the US Supreme Court used to look at various foreign courts’ (generally, the courts of England and Wales) in the 1800’s, with the impression that it didn’t destroy the country.

These remarks are astounding in their utter disregard for the role of the United States supreme Court, post 1938. To understand that role, we must look to the document that created the supreme Court (and disregard foreign courts’ opinions on the matter), and the 1936 court case that puts Ginsburg’s remarks on their head.

Article. III, Section. 2. of the United States Constitution
Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
--to all Cases affecting Ambassadors, other public Ministers and Consuls;
--to all Cases of admiralty and maritime Jurisdiction;
--to Controversies to which the United States shall be a Party;
--to Controversies between two or more States;
--between a State and Citizens of another State;
--between Citizens of different States,
--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

You will notice that the supreme Court has no jurisdiction on deciding matters related to foreign law. You will notice that the supreme Court has appellate jurisdiction subject to the regulation of Congress (so much for the co-equal branch of government).

And, under Article 1, Section 1, you will also notice that only Congress can establish inferior courts to the supreme Court, and Congress cannot create a foreign court.

I suppose it falls upon Redwarning to point out the following:
1. Foreign courts are not interpreting the United States Constitution;
2. Foreign courts are not interpreting United States federal law; and
3. Foreign courts are not interpreting the law of one of the several States of the United States.

Of course, liberals find merely interpreting law very confining. They cannot really do “justice” as they see it by merely interpreting the laws someone else makes. Liberal judges are compelled to make law from the bench.

When judges create law by their decisions, it is called “common law”. State courts routinely make common law. In most States the common law generally follows the common law of England as described by William Blackstone’s pre-Revolutionary war treatise Commentaries on the Law of England. Recall that before the Revolutoinary War, we were under the law of England (as colonies). Post-Revolution, we kept the framework and relied on the more mature courts in England for additional guidance on the English Common law applicable to the several States.

Remember, Ginsburg helpfully points out the early 19th century when there was no question that it was appropriate to refer to decisions of other courts. There is no doubt that in the 19th Century United States, and before then, we were either under the law of England (as colonies) and then kept the framework and relied on the more mature courts in England for additional guidance on the English Common law adopted by the several States. That all sounds fine and good, and contributed to a body of work generally referred to as the Federal Common Law.

Ginsburg’s justification seems to be: we used to do it, why shouldn’t we do it now?

The short answer is, there no longer is a Federal common law. Federal judges have no business looking to create judge-made common law, and haven’t been since the 1938 case Erie RR v. Tompkins. Ginsburg is well aware of the rule of Erie, making her statement completely disingenuous.

The decision in the Erie case means that Federal judges do not look at facts and circumstances and create “judge-made” common law. Common law creation is limited to the courts of the several States. Federal judges must interpret the laws and statutes that they did not create, apply those to the facts of the case, and render an opinion -- not create a law.

So, Ruth Bader Ginsburg, whose job is to NOT make federal common law, but only interpret the Constitution, federal statutes, state law, and treaties, wants to take a look to the common law of foreign courts just like United States “law review articles.”

Why would a supreme Court judge want to look at the decisions of a foreign court? The only possible answer is because the liberal supreme Court judge wants to make some new law, and the language of the Constitution, the laws of the United States, and the laws of the several States does not support their position. We call this results-based decision-making – liberals excel at this.

Put simply, Foreign Court decisions have no more relevance to a case and controversy before the US supreme Court than the lyrics of the latest Jonas’ Brothers album. By definition, foreign Court decisions are completely unrelated to any case and controversy before the United States supreme Court. At least US law review articles discuss US legal issues. Of course, a law review article does not have the imprimatur of being issued by a Jurist sitting in judgment, handing down the law to the unwashed who could not conceive of this heretofore unrecognized truth.

But liberal Ruth Bader Ginsburg cannot be confined to her constitutionally-defined role. She will grasp at any reasoning that alings with hers to legislate from the bench. Reference to irrelevant foreign court decisions is just one tool in the liberal jurist’s toolbox.