Sotomayor is a Judicial Moderate on Foreign Law

CAC encourages outside scholars to guest post on Text & History to broaden the range of constitutional topics discussed on the blog and to add additional voices to the topics we are already discussing. The views expressed in these guest posts do not necessarily reflect the views of CAC. This post is by guest blogger David Fontana, Associate Professor of Law at George Washington University Law School.

It was just last month that Republican Senator John Cornyn of Texas accused Judge Sotomayor of following the practices of other countries rather than “follow[ing] the law and the Constitution.” A New York Times story, which CAC highlighted here, noted that Republican Senator Jeff Sessions “sharply criticized” Judge Sotomayor for her statements on the role of foreign law in American courts.

But, as with all of the other attacks on Judge Sotomayor’s record so far, there is an easy rebuttal: Her decades of experience, as well as America’s hundreds of years of constitutional history. Looking at this evidence shows Judge Sotomayor to be in the sensible judicial middle on all fronts.

Judge Sotomayor has looked to foreign law as one source to help her understand American law—but just one source among many, and one source that is not unnecessarily ahead of or displacing American legal sources. In her speech to the ACLU this past April, Judge Sotomayor notes her support for the Supreme Court’s use of foreign law in Lawrence v. Texas, 539 U.S. 558 (2003) and Roper v. Simmons, 543 U.S. 551 (2001), stating that “[i]n both those cases, the courts were very, very careful to note that they weren’t using that law to decide the American question. They were just using that law to help us understand what the concepts meant to other countries and to help us understand whether our understanding of our own constitutional rights fell within the mainstream of human thinking.”

Her record on the bench likewise reflects this approach. In Senator Linni Gmbh & Co Kg. v. Sunway Line, Inc, 291 F.3d 145 (2nd Cir. 2002), Judge Sotomayor examined both the domestic and international forces leading to the enactment of the Carriage of Goods at Sea Act of 1936 to help her makes sense of that statute. In a dissenting opinion in Croll v. Croll, 229 F.3d 133 (2nd Cir. 2000), Judge Sotomayor had to interpret an international treaty on child custody rights. Judge Sotomayor looked first at “American notions of custody rights” but then looked at the decisions of other countries on the meaning of that treaty. Id. at 150-52.

Where in the world did Judge Sotomayor get the idea that judges should look to foreign cases interpreting treaties for guidance? No one other than the leading advocate of this position on the Supreme Court, Justice Scalia, who has said on many occasions that our courts should consider the decisions of other countries interpreting a treaty that all parties have ratified.

Judge Sotomayor has not only looked to international sources as information after domestic sources, but has only reached out to decide international issues presented by cases if need be. In one of her decisions that has received the most attention, Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2nd Cir. 2002), Judge Sotomayor just addressed the First Amendment issue presented by the Bush Administration’s policy preventing government funds from being used to discuss or perform abortions, and not the international law issues, because she said the domestic and international issues “are substantively indistinguishable” and so there was no need to express a “view” on the international issues. Id. at 195 n.6. Several other cases have the same pattern: Judge Sotomayor not reaching out to decide international issues unless need be, and instead making American courts primarily about resolving issues of American law.

Judge Sotomayor has also been very attentive to the concern that, as she recognized in her speech to the ACLU in April, “because there are so many international and foreign laws and so many of them vary, then a judge can look at the law of any country to support his or her conclusion because they’ll find somebody who’ll agree with them.” In several of her opinions, most notably her dissent in Croll mentioned earlier, she has made sure to consider foreign law from countries with a range of legal approaches, and she has been insistent in several cases that the arguments about foreign law presented by the lawyers in the cases be thorough and comprehensive rather than selective and biased.

Again, this approach of using foreign law as one source among many, as indicated in her opinions and in her speeches and other writings, is not a radical idea. Justice Scalia looked to foreign law in Schriro v. Summerlin in 2004 to see what “so many presumably reasonable minds” from around the world thought about the issue that the Court had to decide. Schriro v. Summerlin, 542 U.S. 348, 356 (2004). So Judge Sotomayor’s speech and Justice Scalia’s opinion and other writings all agree that looking to foreign law can be helpful to, as Justice Sandra Day O’Connor wrote in Roper, “confirm the reasonableness” of an American legal conclusion. See Roper, 543 U.S. at 605 (O’Connor, J., dissenting).

This practice is not new to the recent Supreme Court either. As Federalist Society Co-Founder Steven Calabresi and his co-author Stephanie Zimdahl wrote in an article in 2005, the Supreme Court has been doing it for hundreds of years. So it is not just Judge Sotomayor, or Justice Scalia, or Justice O’Connor who do this—but also John Marshall, and Joseph Story, and Felix Frankfurter, and many others who have been opening their eyes to the full range of legally helpful information.

It is the Republican attacks on Judge Sotomayor that are baseless and outside of the mainstream. When Senator Sessions told The New York Times that Judge Sotomayor believes in “[t]the novel idea that foreign law has a place in the interpretation of American law,” it was Senator Sessions’s statement that was novel—and incorrect. Judge Sotomayor is doing what American judges have been doing since the Founding: Keeping their eyes open for legally relevant sources that can help them decide complicated cases.

Special thanks to Stan Chiueh and Patrick Thompson for their assistance.