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Full Text): “Supreme Court” and (“Foreign Law” OR “Foreign Court” OR “Europe”) Plus an Additional Search for Articles About Lawrence V © Copyright 2012 Christopher Roberts A Contest of Legitimacy: The Supreme Court, Congress, and Foreign Law Christopher Roberts A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy University of Washington 2012 Reading Committee: Rachel Cichowski, Chair Michael McCann George Lovell Program Authorized to Offer Degree: Political Science University of Washington Abstract A Contest of Legitimacy: The Supreme Court, Congress, and Foreign Law Christopher Roberts Chair of the Supervisory Committee: Associate Professor Rachel Cichowski Department of Political Science Before 2003, the Justices on the United States Supreme Court routinely, if infrequently, cited foreign or international jurisprudence in their written opinions. Neither the media, nor members of Congress paid much, if any attention to the practice. However, after the decisions in Lawrence v. Texas (2003) and Roper v. Simmons (2005), what was an uncontroversial citation practice became a hotly contested issue in Congress, the media, and among conservative political activists. This debate had an effect on the Justices. In Kennedy v. Louisiana (2008), Justice Kennedy refrained from citing case law from the Inter‐ American Commission of Human Rights even though they were discussed in the briefs and in oral arguments. In 2012, Justice Sotomayor authored a dissent in Blueford v. Arkansas that explicitly omitted an 1861 decision of the Queens Bench in England that was discussed in the Court’s opinion in Arizona v. Washington (1978) and in the petitioner’s brief while simultaneously citing the other cases contained in both documents, including several decisions from English courts issued before America’s independence. In this dissertation, I explain how this uncontroversial citation practice became controversial. I analyze how The New York Times, The Washington Post, USA Today, The Wall Street Journal and The Washington Times covered the Court’s use of foreign law. I examine the resolutions and legislation introduced by members of Congress and the questioning of Supreme Court nominees by members of the Senate Judiciary Committee about the use of foreign law. I discuss how the Justices of the United States Supreme Court are less likely to cite foreign law than other courts with constitutional review powers. The Justices are sensitive and respond to the reaction of external audiences (Baum 2006). The reaction of the Justices to this controversy indicates that the Justices care more about cases than just their disposition or particular policy agendas, and provides further evidence that the Justices take into account their relationships with other actors and audiences. TABLE OF CONTENTS List of Tables ............................................................................................................................................................... ii Chapter One: Introduction .................................................................................................................................... 1 Justices and their Audiences ............................................................................................................................................ 5 The Written Opinion and the Legitimacy of the Court ...................................................................................... 10 Organization of this Dissertation ................................................................................................................................ 15 Chapter Two: Referencing Foreign Law ...................................................................................................... 17 What and Why Judges Cite ............................................................................................................................................ 19 The Supreme Court in American Society ................................................................................................................ 33 Influences of Supreme Court Procedures on Citation Practices ................................................................... 39 Pleasing External Audiences ......................................................................................................................................... 50 Conclusions .......................................................................................................................................................................... 53 Chapter Three: Foreign Law: A Controversy Among the Justices and Among Members of Congress ..................................................................................................................................................................... 57 Foreign Law in the Court ................................................................................................................................................ 59 Foreign Law in Congress ................................................................................................................................................ 80 Conclusions ........................................................................................................................................................................ 106 Chapter Four: Responses of Elite Audiences: The Media, the Legal Profession, and the Political Parties .................................................................................................................................................... 109 The Media, the Supreme Court, and Foreign Law ............................................................................................. 111 The Legal Profession and Foreign Law .................................................................................................................. 129 The Proper Role of the Justice According to the Political Parties ............................................................... 140 Conclusions ........................................................................................................................................................................ 147 Chapter Five: Is the Controversy About the Use of Foreign Law Uniquely American? ........ 151 The Use of Foreign Law by the South African Constitutional Court .......................................................... 157 The Use of Foreign Law by the Supreme Court of Canada ............................................................................ 171 The Use of Foreign Law by the Supreme Court of the United States ........................................................ 190 Conclusions ........................................................................................................................................................................ 209 Chapter Six: Why the Justices Respond to External Audiences ...................................................... 211 The Effect of the Controversy ..................................................................................................................................... 216 A Contest over Legitimacy ........................................................................................................................................... 220 Further Research Questions ....................................................................................................................................... 223 Concluding Remarks ...................................................................................................................................................... 228 Bibliography .......................................................................................................................................................... 231 i List of Tables Page 1. Newspaper Coverage of the Use of Foreign Law: 1990‐2003………………………………. 115 2. Phyllis Schlafly Columns: 2003 – 2010 ………………………………………………………………. 121 3. Newspaper Coverage of the Use of Foreign Law: 2004‐2011………………………………. 126 4. Number of Articles about the use of Foreign Law in Law Reviews: Top 12 Journals ……………………………………………………………………………………………………. 136 5. Support for the Court’s Use of Foreign Law in the Law Reviews: 2004‐2011 ……….. 137 6. Top Cited Law Review Articles about the Use of Foreign Law: 2004‐2011 ……...…… 139 7. Evolution of the Texas State Republican Platform: 2000‐2008 ……………………………. 145 8. Citations of Foreign Authorities: 2000‐2009 ………………………………………………………. 154 9. Citations of Foreign Authorities (Excluding Treaties): 2000‐2009 ..…………………….. 155 10. Citations of Foreign Authorities by Justice of the Constitutional Court of South Africa: 2000‐2009 ……………………………………………………………………………………… 163 11. Citations of Foreign Authorities by the Constitutional Court of South Africa: 2000‐2009 ………………………………………………………………………………………………………….. 167 12. Citations of Foreign Authorities by Justice of the Supreme Court of Canada: 2000‐2009 ………………………………………………………………………………………………………….. 182 13. Citations of Foreign Authorities by the Supreme Court of Canada: 2000‐2009 ….. 189 14. Citations of Foreign Authorities by Justice of the Supreme Court of the United States: October Terms 2000‐2009 ……………………………………………………………… 191 15. Citations of Foreign Authorities by the Supreme Court of the United States: 2000‐2009 …………………………………………………………………………………………………………… 201 16. The Supreme Court of the United States Response to the Media ……………………..… 215 ii Acknowledgements President Barack Obama’s statement on the 2012 campaign trail “you didn’t build that” certainly applies to this dissertation. Without
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