Why Ginsburg's Reasoning for Citing Foreign Legal Decision is Wrong

The New York Times ran an article on Saturday that aired Justice Ginsburg's defense to the use of foreign law by American judges.  I want to highlight one passage in particular.

In her remarks, Justice Ginsburg discussed a decision by the Israeli Supreme Court concerning the use of torture to obtain information from people suspected of terrorism.

“The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” she said, describing the question presented in the case. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.’ ”

The message of the decision, Justice Ginsburg said, was “that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity.” Then she asked, “Now why should I not read that opinion and be affected by its tremendous persuasive value?”

At the Volokh Conspiracy, David Bernstein takes apart Justice Ginsburg's reasoning above and describes why it is not her job to issue a ruling based on a moral judgment about the law.

I don't know that Ginsburg is accurately describing Israel's law, which as I understand it allows the use of "moderate physical pressure" in exigent circumtances. (Also, an aside, the Israeli Supreme Court is a rather dubious institution. It has arrogated to itself the power to determine the constitutionality of various very important government policies, including with regard to questions of national security, despite the fact that Israel has no constitution. That Barak, a leading advocate of this constitutional coup, is so widely admired by American liberal constitutionalists likely says something significant, and to me not very positive, about their view of the proper role of the judiciary.)

Regardless, there is very good reason that Justice Ginsburg shouldn't be affected by Justice Barak's opinion, as described by Ginsburg, and that's its reliance on moral judgment rather than law. It's not Justice Ginsburg's job to decide whether allowing the use of torture is a lesser evil, or whether it should be banned because it means "we come to look like that enemy in our disregard for human dignity." Such determinations are for the elected branches to make in establishing the law, and Justice Ginsburg's job is to apply the law they have made, not to make up rules that comport with the values she has adopted after thinking very hard about the learned decisions of judges in other countries. Justice Ginsburg is free to be personally persuaded on the moral issue by Justice Barak, but this should have no effect on her vote on any case involving the legality of torture.

Update:  DrewM at AOS has more.

Let me just say why I think this is a bad and more importantly, a dangerous idea. What it really amounts to is a judge looking for a way to pretty up his or her personal opinion. Since they can't find any precedent or support in America's legal traditions they have to go in search of one.

It would be far more honest for Ginsburg, Breyer or Kennedy just to say, "this is what I think and I'm on the Court so you can't stop me from making it the law". Alas, that would never do. Instead they drape their policy preferences in the warm blanket of 'learned colleagues' who represent sophisticated places like Europe. It's not a naked power grab, they will say. It's simply bringing the US into the family of right thinking nations.

Isn't it funny how they always find just the opinion they are looking for? Well it's pretty easy when the world is your market place. Interestingly though, they tend to be rather selective about the courts they cite. On abortion or the death penalty (and a late addition...matters involving gay rights) it's always European courts. Why not South America, Asia or even Islamic courts? Oh because then if you are an activist, liberal justice you don't get the results you like*. I'm sure it's just a coincidence that the most persuasive foreign opinions just happen to match their own preferences. How fortunate for them.