Don't boss the court, Scalia tells Congress


WASHINGTON -- Justice Antonin Scalia said yesterday that he is strongly opposed to using foreign law to decide constitutional cases in the Supreme Court, but he is also opposed to having Congress outlaw the practice.

"I don't think it's any of your business. ... Let us make our own mistakes, just as we let you make yours," he told a luncheon audience of Italian-Americans that included members of Congress.

Scalia is a conservative and a believer in the independence of the courts.

Scalia's oft-stated skepticism about the role of foreign laws has been taken up by a group of House Republicans, who introduced a measure saying legal decisions interpreting the Constitution "should not be based on judgments, law or pronouncements of foreign institutions."

Scalia said yesterday that he did not welcome the intervention. He told the lawmakers he did not think the justices should second-guess how Congress makes its decisions. The same applies in reverse, he said.

"No one is more opposed to using foreign law than I am, but I'm darned if I think it's up to Congress to direct the Supreme Court how to make its decisions," he said.

Scalia, the first Italian-American to sit on the Supreme Court, was speaking to the National Italian American Foundation. They gathered in an office at the House of Representatives.

It was a tame performance for Scalia.

A former law professor and one of the court's leading intellects, he travels widely and speaks regularly on the law. But sometimes, his appearances gain attention less for his considered legal views than for his combative off-the-cuff comments and gestures.

In February, he said only "idiots" would believe the Constitution must change with society. Several of his colleagues are on record as saying the Constitution should indeed change with society.

In March, just two weeks before the Supreme Court took up such a case, he said "it's crazy" to believe foreigners captured in a war are entitled to a full jury trial.

The next weekend, he set off a minor flap in Boston when he was captured on camera giving a dismissive - some said vulgar - fingers-under-chin gesture to a reporter who asked him a question as he left church.

"That's Sicilian," he explained.

Yesterday, he stuck to a familiar legal topic, albeit one that has sharply divided the Supreme Court and much of the nation's legal community.

The issue is whether the justices should consider the opinions of foreign courts in deciding cases under the U.S. Constitution. The question has been caught up in the culture wars over gay rights, abortion, religion and the death penalty.

In recent years, four of Scalia's colleagues - Justices Ruth Bader Ginsburg, John Paul Stevens, Stephen G. Breyer and Anthony M. Kennedy - have given speeches saying the opinions of foreign courts should influence legal thinking in the United States, even though these outside views are not decisive.

Three years ago, when the Supreme Court struck down as unconstitutional a Texas law that made private sex between gay adults a crime, the majority pointed out in passing that the European Court of Human Rights had come to a similar conclusion two decades earlier.

Two years ago, the court struck down the state laws that permitted murderers under age 18 to receive the death penalty. Kennedy noted that the United States stood nearly alone in today's world in condemning juvenile killers to death.

Scalia dissented sharply in both cases, faulting the majority for following the view of "like-minded foreigners" and repeating his view that the Constitution "means just what it meant when it was adopted."

"I'm not some yahoo, a hater of all things foreign," Scalia said yesterday.

"I'm a friend of foreign law" in cases involving treaties or trade compacts between nations, he said, "but not when it comes to determining the meaning of the U.S. Constitution."

David G. Savage writes for the Los Angeles Times.

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